Invacare 8-K

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, L+itEkIY6/7pnVfcPNXRm3pIszE6sE5ZZcYb3Oorag/t39HEKwUafGvD4jw/+Wue VcBKRwR/fwpN5/c5S9XLew== 0000950152-07-000982.txt : 20070213 0000950152-07-000982.hdr.sgml : 20070213 20070212191333 ACCESSION NUMBER: 0000950152-07-000982 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20070212 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070213 DATE AS OF CHANGE: 20070212 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INVACARE CORP CENTRAL INDEX KEY: 0000742112 STANDARD INDUSTRIAL CLASSIFICATION: ORTHOPEDIC, PROSTHETIC & SURGICAL APPLIANCES & SUPPLIES [3842] IRS NUMBER: 952680965 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-15103 FILM NUMBER: 07605293 BUSINESS ADDRESS: STREET 1: ONE INVACARE WAY STREET 2: P O BOX 4028 CITY: ELYRIA STATE: OH ZIP: 44036 BUSINESS PHONE: 4403296000 8-K 1 l24661ae8vk.htm INVACARE 8-K Invacare 8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) February 12, 2007

INVACARE CORPORATION

(Exact name of registrant as specified in its charter)


Ohio	1-15103	95-2680965

(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)


One Invacare Way, P.O. Box 4028, Elyria, Ohio		44036

(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (440) 329-6000

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o		Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS


	Item 1.01. Entry into a Material Definitive Agreement.
	Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
	Item 3.02. Unregistered Sales of Equity Securities.
	Item 8.01. Other Events.
	Item 9.01. Financial Statements and Exhibits.
SIGNATURE
Exhibit Index
EX-4.1
EX-4.2
EX-4.3
EX-4.4
EX-10.1
EX-99.1

Item 1.01. Entry into a Material Definitive Agreement.

On February 12, 2007, Invacare Corporation (the “Company”) completed certain refinancing transactions which are further described below.

New Senior Secured Credit Facilities

On February 12, 2007, the Company entered into a Credit Agreement by and among the Company, the Facility Guarantors named therein, the lenders named therein, Banc of America Securities LLC and KeyBank National Association as joint lead arrangers for the term loan facility, and National City Bank and KeyBank National Association as joint lead arrangers for the revolving loan facility (the “Credit Agreement”), which provides for a $400 million senior secured credit facility consisting of a $250 million term loan facility and a $150 million revolving credit facility.

Borrowings under the new senior secured credit facility generally bear interest at a rate equal to LIBOR plus an applicable margin or, at the Company’s option, an alternate base rate (defined as the prime rate of National City Bank or the federal funds rate plus 0.50%) plus an applicable margin. The initial interest rate for borrowings under the Credit Agreement is LIBOR plus a margin of 2.25%, including an initial facility fee of 0.50% per annum on the facility. The applicable margin for borrowings and the revolving credit facility under the Credit Agreement may be reduced if the Company attains specified leverage ratios. The Company also must pay customary letter of credit and bankers’ acceptance fees.

The Credit Agreement requires the Company to prepay outstanding loans under the facility, subject to certain exceptions, with (i) 100% of the net cash proceeds from the sale of assets or property, the issuance or incurrence of debt, or casualty proceeds and condemnation awards, (ii) 50% of the net cash proceeds from the issuance of additional equity of the Company or its subsidiaries, (iii) 75% of the Company’s annual excess cash flow (subject to decreases upon attaining specified leverage ratios), and (iv) 100% of extraordinary receipts. All such mandatory prepayments will be applied first to the term loan facility and then to the revolving credit facility.

The term loan facility will mature on its sixth anniversary, with scheduled amortization of principal at three month intervals, in amounts equal to 0.25% of the initial aggregate principal amount of the term loan facility loans, in the case of each of the first 23 quarterly payments, with the then remaining outstanding principal amount due and payable in full on the sixth anniversary of the facility. The revolving credit facility will terminate and all amounts outstanding thereunder will be due and payable in full on the fifth anniversary of the revolving credit facility.

The Company’s obligations under the Credit Agreement are secured by substantially all of the Company’s assets, subject to certain exceptions, and are guaranteed by its material domestic subsidiaries, with certain obligations also guaranteed by its material foreign subsidiaries. The Credit Agreement contains a number of customary restrictive covenants, affirmative covenants and events of default, and financial covenants that require the Company to maintain a maximum leverage ratio, a minimum interest coverage ratio, and a minimum fixed charge coverage ratio.

The foregoing description of the Credit Agreement is a summary and is qualified in its entirety by reference to the terms of the Credit Agreement, which is attached hereto as Exhibit 10.1.

Convertible Senior Subordinated Debentures due 2027

On February 5, 2007, the Company and certain of its domestic subsidiaries entered into a purchase agreement (the “Debenture Purchase Agreement”) under which the Company agreed to sell $125 million aggregate principal amount of 4.125% Convertible Senior Subordinated Debentures due 2027 (the “Debentures”) to the initial purchasers named therein (collectively, the “Initial Debenture Purchasers”). The Debenture Purchase Agreement also granted the Initial Debenture Purchasers an option to purchase up to an additional $10 million aggregate principal amount of the Debentures to cover over-allotments. On February 7, 2007, the Initial Debenture Purchasers exercised the full $10 million option. The closing of the sale of the Debentures occurred on February 12, 2007. The net proceeds to the Company from the offering, after deducting the Initial Debenture Purchasers’ discount and the estimated offering expenses payable by the Company, were approximately $132.3 million.

The Debentures and the Company’s common shares issuable in certain circumstances upon conversion of the Debentures have not been registered under the Securities Act of 1933, as amended (the “Securities Act”). The Company offered and sold the Debentures to the Initial Debenture Purchasers in reliance on the exemption from registration provided by Section 4(2) of the Securities Act. The Initial Debenture Purchasers can then sell the Debentures to qualified institutional buyers pursuant to the exemption from registration provided by Rule 144A under the Securities Act. The Company relied on these exemptions from registration based in part on representations made by the Initial Debenture Purchasers in the Debenture Purchase Agreement.

The Debentures are governed by an Indenture, dated February 12, 2007 (the “Debentures Indenture”), by and among the Company, the Guarantors named therein and Wells Fargo Bank, N.A., as trustee (the “Trustee”). The description of the terms of the Debentures contained in this Item 1.01 is a summary and is qualified in its entirety by reference to the terms of the Debentures Indenture and the form of Debenture and related Guarantee, which is attached hereto as Exhibit 4.1.

The Debentures are unsecured senior subordinated obligations of the Company guaranteed by substantially all of the Company’s domestic subsidiaries and pay interest at 4.125% per annum on each February 1 and August 1. The Debentures are convertible into cash, a number of the Company’s common shares, or a combination of cash and shares, as determined in the Company’s discretion, based on an initial conversion rate, subject to adjustment, of 40.3323 shares per $1,000 principal amount of Debentures (which represents an initial conversion price of approximately $24.79 per share). Conversion is allowed only under the following circumstances: (1) if during any fiscal quarter beginning after March 31, 2007 (and only during such quarter) the last reported sale price of the Company’s common shares for at least 20 trading days during the period of 30 consecutive trading days ending on the last trading day of the preceding fiscal quarter exceeds 130% of the applicable conversion price per common share on that 30th trading day; (2) during the five business days after any five consecutive trading day period in which the trading price of the Debentures was less than 98% of the product of the closing price of the Company’s common shares multiplied by the applicable conversion rate; (3) if the Company has called the Debentures for redemption; (4) on or after November 1, 2026; or (5) upon the occurrence of certain specified corporate transactions, as set forth in the Debentures Indenture.

The holders of the Debentures may require the Company to purchase all or a portion of their Debentures if certain change in control transactions occur, in each case at a repurchase price equal to 100% of the principal amount of the repurchased Notes, plus any unpaid interest accrued to the repurchase date. In addition, the holders of Debentures who convert their Debentures in connection with certain change in control events, as defined in the Debentures Indenture, may be entitled to a make-whole premium in the form of an increase in the conversion rate. The conversion rate also may be adjusted under certain other circumstances, including the payment of cash dividends in excess of the Company’s current regular quarterly common share dividend of $0.0125 per share.

The Debentures will be redeemable at the Company’s option, subject to specified conditions, on or after February 6, 2012 through and including February 1, 2017, and at the Company’s option after February 1, 2017. On February 1, 2017 and 2022 and upon the occurrence of certain circumstances, holders will have the right to require the Company to repurchase all or some of their Debentures.

In connection with the sale of the Debentures, the Company and certain subsidiaries of the Company entered into a registration rights agreement, dated February 12, 2007, with the Initial Debenture Purchasers (the “Debenture Registration Rights Agreement”). Under the Debenture Registration Rights Agreement, the Company has agreed to use its commercially reasonable efforts to file within 90 days of the date on which the Debentures are first issued a shelf registration statement for resale of the Debentures and the common shares issuable upon conversion of the Debentures. The Company is further obligated to use its commercially reasonable efforts to cause the shelf registration statement to become effective under the Securities Act within 180 days after the date on which the Debentures are first issued. If the Company fails to comply with certain of its obligations under the Debenture Registration Rights Agreement, it will be required to pay additional interest to holders of the Debentures under specified circumstances. The foregoing description of the terms of the Debenture Registration Rights Agreement is a summary and is qualified in its entirety by reference to the terms of the Debenture Registration Rights Agreement, which is attached hereto as Exhibit 4.3.

The Debentures and the common shares issuable upon conversion have not been registered under the Securities Act or the securities laws of any other jurisdiction and may not be offered or sold in the United States absent registration under, or an applicable exemption from, the registration requirements of the Securities Act and applicable state securities laws.

Senior Notes due 2015

On February 7, 2007, the Company and certain of its domestic subsidiaries entered into a purchase agreement (the “Note Purchase Agreement”) under which the Company agreed to sell $175 million aggregate principal amount of 9 3/4% Senior Notes due 2015 (the “Notes”) to the initial purchasers named therein (collectively, the “Initial Note Purchasers”). The closing of the sale of the Notes occurred on February 12, 2007. The net proceeds to the Company from the offering, after deducting the Initial Note Purchasers’ discount and the estimated offering expenses payable by the Company, were approximately $167 million.

The Notes have not been registered under the Securities Act. The Company offered and sold the Notes to the Initial Note Purchasers in reliance on the exemption from registration provided by Section 4(2) of the Securities Act. The Initial Note Purchasers can then sell the Notes to qualified

institutional buyers pursuant to the exemption from registration provided by Rule 144A under the Securities Act and to non-U.S. persons outside the United States in reliance on Regulation S under the Securities Act. The Company relied on these exemptions from registration based in part on representations made by the Initial Note Purchasers in the Note Purchase Agreement.

The Notes are governed by an Indenture, dated February 12, 2007 (the “Notes Indenture”), by and among the Company, the Guarantors named therein and the Trustee. The description of the terms of the Notes contained in this Item 1.01 is a summary and is qualified in its entirety by reference to the terms of the Notes Indenture and the form of Notes and related Guarantee, which is attached hereto as Exhibit 4.2.

The Notes are unsecured senior obligations of the Company guaranteed by substantially all of the Company’s domestic subsidiaries. The Notes mature on February 15, 2015 and interest on the Notes will accrue at 9 3/4% per year payable on February 15 and August 15, commencing August 15, 2007. The Company may redeem some or all of the Notes at any time on or prior to February 15, 2011 at a redemption price equal to 100% of the principal amount of the Notes plus an applicable premium as calculated as set forth in the Notes Indenture. The Company may redeem some or all of the Notes at any time after February 15, 2011 at certain specified redemption prices. The Company also may redeem up to 35% of the aggregate principal amount of the Notes using the proceeds from certain equity offerings on or before February 15, 2010.

In connection with the sale of the Notes, the Company and certain of its subsidiaries entered into a registration rights agreement, dated February 12, 2007, with the Initial Note Purchasers (the “Note Registration Rights Agreement”). Under the Note Registration Rights Agreement, the Company has agreed to use its commercially reasonable efforts to file within 90 days of the date on which the Notes are first issued a registration statement with respect to an exchange of the Notes. The Company is further obligated to use its commercially reasonable efforts to cause the registration statement with respect to an exchange of the Notes to become effective under the Securities Act within 180 days after the date on which the Notes are first issued and to complete the exchange offer for the Notes within 210 days of the issuance of the Notes. The Company also agreed to file a shelf registration statement relating to the resale of the Notes if the exchange offer is not consummated within the time period set forth in the previous sentence and under other circumstances specified in the Note Registration Rights Agreement. If the Company fails to comply with certain of its obligations under the Note Registration Rights Agreement, it will be required to pay additional interest to holders of the Notes under specified circumstances. The foregoing description of the terms of the Note Registration Rights Agreement is a summary and is qualified in its entirety by reference to the terms of the Note Registration Rights Agreement, which is attached hereto as Exhibit 4.4.

The Notes have not been registered under the Securities Act or the securities laws of any other jurisdiction and may not be offered or sold in the United States absent registration under, or an applicable exemption from, the registration requirements of the Securities Act and applicable state securities laws.

The Company used the net proceeds from the offerings of the Notes and the Debentures, together with its initial borrowings under the Credit Agreement to repay outstanding indebtedness under its previously existing revolving credit facility, its accounts receivable securitization, its 6.71% senior notes due 2008, 3.97% senior notes due 2007, 4.74% senior notes due 2009, 5.05% senior

notes due 2010 and 6.17% senior notes due 2016 and its related expenses and repayment costs aggregating $570 million.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information regarding the Credit Agreement, the Notes and the Debentures provided in Item 1.01 and the information regarding the Debentures provided in Item 3.02 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 2.03.

Item 3.02. Unregistered Sales of Equity Securities.

On February 12, 2007, the Company sold $135 million aggregate principal amount of the Debentures in a private placement in reliance from the exemption from the registration provided by Section 4(2) of the Securities Act. The Initial Debenture Purchasers can then sell the Debentures to qualified institutional buyers pursuant to the exemption from registration provided by Rule 144A under the Securities Act. The Company relied on these exemptions based in part on representations made by the Initial Debenture Purchasers in the Debenture Purchase Agreement. The purchase price paid by the Initial Debenture Purchasers of the Debentures was 98% of the principal amount thereof, or $132.3 million.

The information regarding the Debentures provided in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.02.

Item 8.01. Other Events.

On February 12, 2007, the Company issued a press release in connection with the events described in this Current Report on Form 8-K. The press release is attached hereto as Exhibit 99.1 and is incorporated by reference into this Item 8.01.

Item 9.01. Financial Statements and Exhibits.


Exhibit number		Description

4.1		Indenture, dated February 12, 2007, by and among Invacare Corporation, the Guarantors named therein and Wells Fargo Bank, N.A., as trustee (including the Form of 4.125% Convertible Senior Subordinated Debenture due 2027 and related Guarantee attached as Exhibit A).


Exhibit number		Description
4.2		Indenture, dated February 12, 2007, by and among Invacare Corporation, the Guarantors named therein and Wells Fargo Bank, N.A., as trustee (including the Form of 9 3/4% Senior Note due 2015 and related Guarantee attached as Exhibit A).

4.3		Registration Rights Agreement, dated February 12, 2007, among Invacare Corporation, the Guarantors named therein and the Initial Purchasers named therein.

4.4		Registration Rights Agreement, dated February 12, 2007, among Invacare Corporation, the Guarantors named therein and the Initial Purchasers named therein.

10.1		Credit Agreement, dated February 12, 2007, by and among Invacare Corporation, the Facility Guarantors named therein, the lenders named therein, Banc of America Securities LLC and KeyBank National Association as joint lead arrangers for the term loan facility, and National City Bank and KeyBank National Association as joint lead arrangers for the revolving loan facility.

99.1		Press Release of Invacare Corporation dated February 12, 2007.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


	Invacare Corporation (Registrant)
Date: February 12, 2007	/s/ Gregory C. Thompson
	Gregory C. Thompson
	Senior Vice President and Chief Financial Officer

Exhibit Index


Exhibit number		Description

4.1		Indenture, dated February 12, 2007, by and among Invacare Corporation, the Guarantors named therein and Wells Fargo Bank, N.A., as trustee (including the Form of 4.125% Convertible Senior Subordinated Debenture due 2027 and related Guarantee attached as Exhibit A).

4.2		Indenture, dated February 12, 2007, by and among Invacare Corporation, the Guarantors named therein and Wells Fargo Bank, N.A., as trustee (including the Form of 9 3/4% Senior Note due 2015 and related Guarantee attached as Exhibit A).

4.3		Registration Rights Agreement, dated February 12, 2007, among Invacare Corporation, the Guarantors named therein and the Initial Purchasers named therein.

4.4		Registration Rights Agreement, dated February 12, 2007, among Invacare Corporation, the Guarantors named therein and the Initial Purchasers named therein.

10.1		Credit Agreement, dated February 12, 2007, by and among Invacare Corporation, the Facility Guarantors named therein, the lenders named therein, Banc of America Securities LLC and KeyBank National Association as joint lead arrangers for the term loan facility, and National City Bank and KeyBank National Association as joint lead arrangers for the revolving loan facility.

99.1		Press Release of Invacare Corporation dated February 12, 2007.

EX-4.1 2 l24661aexv4w1.txt EX-4.1 EXHIBIT 4.1 EXECUTION VERSION INVACARE CORPORATION AND EACH OF THE GUARANTORS PARTY HEREIN 4.125% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2027 ---------- INDENTURE Dated as of February 12, 2007 ---------- Wells Fargo Bank, N.A. Trustee CROSS-REFERENCE TABLE*

N.A. means not applicable. * This Cross-Reference Table is not part of the Indenture. TABLE OF CONTENTS

i ARTICLE 4 COVENANTS Section 4.01 Payment of Securities..................................... 30 Section 4.02 SEC and Other Reports..................................... 30 Section 4.03 Compliance Certificate.................................... 31 Section 4.04 Further Instruments and Acts.............................. 32 Section 4.05 Delivery of Certain Information........................... 32 Section 4.06 Additional Interest Notice................................ 32 Section 4.07 Maintenance of Office or Agency........................... 32 Section 4.08 No Layering of Indebtedness............................... 33 Section 4.09 Guarantees................................................ 33 ARTICLE 5 SUCCESSOR PERSON Section 5.01 When Company May Merge or Transfer Assets................. 33 ARTICLE 6 DEFAULTS AND REMEDIES Section 6.01 Events of Default......................................... 35 Section 6.02 Acceleration.............................................. 36 Section 6.03 Other Remedies............................................ 37 Section 6.04 Waiver of Past Defaults................................... 37 Section 6.05 Control by Majority....................................... 37 Section 6.06 Limitation on Suits....................................... 38 Section 6.07 Rights of Holders to Receive Payment...................... 38 Section 6.08 Collection Suit by Trustee................................ 38 Section 6.09 Trustee May File Proofs of Claim.......................... 38 Section 6.10 Priorities................................................ 39 Section 6.11 Undertaking for Costs..................................... 39 Section 6.12 Waiver of Stay, Extension or Usury Laws................... 40 ARTICLE 7 TRUSTEE Section 7.01 Duties of Trustee......................................... 40 Section 7.02 Rights of Trustee......................................... 41 Section 7.03 Individual Rights of Trustee.............................. 43 Section 7.04 Trustee's Disclaimer...................................... 43 Section 7.05 Notice of Defaults........................................ 43 Section 7.06 Reports by Trustee to Holders............................. 43 Section 7.07 Compensation and Indemnity................................ 43 Section 7.08 Replacement of Trustee.................................... 44 Section 7.09 Successor Trustee by Merger............................... 45 Section 7.10 Eligibility; Disqualification............................. 45 Section 7.11 Preferential Collection of Claims Against Company......... 45

ii ARTICLE 8 DISCHARGE OF INDENTURE Section 8.01 Discharge of Liability on Securities...................... 46 Section 8.02 Repayment to the Company.................................. 46 Section 8.03 Application of Trust Money................................ 46 ARTICLE 9 AMENDMENTS Section 9.01 Without Consent of Holders................................ 46 Section 9.02 With Consent of Holders................................... 47 Section 9.03 Compliance With Trust Indenture Act....................... 49 Section 9.04 Revocation and Effect of Consents, Waivers and Actions.... 49 Section 9.05 Notice of Amendments, Notation on or Exchange of Securities................................................ 49 Section 9.06 Trustee to Sign Supplemental Indentures................... 49 Section 9.07 Effect of Supplemental Indentures......................... 49 ARTICLE 10 CONVERSIONS Section 10.01 Conversion Privilege...................................... 49 Section 10.02 Conversion Procedure; Conversion Rate; Fractional Shares.. 54 Section 10.03 Payment Upon Conversion................................... 55 Section 10.04 Adjustment of Conversion Rate............................. 57 Section 10.05 Effect of Reclassification, Consolidation, Merger or Sale...................................................... 63 Section 10.06 Taxes on Shares Issued.................................... 65 Section 10.07 Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements................. 65 Section 10.08 Responsibility of Trustee................................. 66 Section 10.09 Notice to Holders Prior to Certain Actions................ 66 Section 10.10 Shareholder Rights Plan................................... 67 Section 10.11 Unconditional Right of Holders to Convert................. 67 Section 10.12 Limitation on Adjustments................................. 67 ARTICLE 11 SUBORDINATION Section 11.01 Agreement of Subordination................................ 67 Section 11.02 Payments to Holders....................................... 68 Section 11.03 Subrogation of Securities................................. 70 Section 11.04 Authorization to Effect Subordination..................... 71 Section 11.05 Notice to Trustee......................................... 71 Section 11.06 Trustee's Relation to Senior Debt......................... 72 Section 11.07 No Impairment of Subordination............................ 72 Section 11.08 Certain Issuances Not Deemed Payment...................... 72 Section 11.09 Obligations Not Impaired.................................. 72 Section 11.10 Article Applicable to Paying Agents....................... 72 Section 11.11 Senior Debt Entitled to Rely.............................. 73

iii ARTICLE 12 GUARANTEES Section 12.01 Guarantee................................................. 73 Section 12.02 Subordination of Guarantees............................... 75 Section 12.03 Guarantee is in Addition to Other Security................ 76 Section 12.04 Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies................................. 76 Section 12.05 Limitation on Guarantor Liability......................... 76 Section 12.06 Execution and Delivery of Guarantee....................... 76 Section 12.07 Releases.................................................. 77 ARTICLE 13 MISCELLANEOUS Section 13.01 Trust Indenture Act Controls.............................. 77 Section 13.02 Notices................................................... 77 Section 13.03 Communication by Holders with Other Holders............... 78 Section 13.04 Certificate and Opinion as to Conditions Precedent........ 78 Section 13.05 Statements Required in Certificate or Opinion............. 79 Section 13.06 Separability Clause....................................... 79 Section 13.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar................................................. 79 Section 13.08 Legal Holidays............................................ 79 Section 13.09 Governing Law............................................. 79 Section 13.10 No Recourse Against Others................................ 79 Section 13.11 Successors................................................ 80 Section 13.12 Multiple Originals........................................ 80

EXHIBIT A Form of Global Security EXHIBIT B Form of Certificated Security EXHIBIT C Form of Notice of Redemption EXHIBIT D Form of Notice of Repurchase EXHIBIT E Notice of Occurrence of Fundamental Change EXHIBIT F Form of Notation of Guarantee EXHIBIT G Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors SCHEDULE I Number of Additional Shares iv INDENTURE dated as of February 12, 2007 among Invacare Corporation, an Ohio corporation ("Company"), the Guarantors (as defined herein), and Wells Fargo Bank, N.A., a national banking association ("Trustee"). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company's 4.125% Convertible Senior Subordinated Debentures due 2027: ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01 Definitions. "Additional Interest" means the interest that is payable by the Company pursuant to the Registration Rights Agreement upon a Registration Default (as defined in such agreement). "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling," "controlled" and "under common control with" have meanings correlative to the foregoing. "Applicable Procedures" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transaction and as in effect from time to time. "Bankruptcy Law" means Title 11 of the United States Code (or any successor thereto) or any similar federal or state law for the relief of debtors. "Bid Solicitation Agent" means the agent of the Company appointed to obtain quotations for the Securities as set forth under the definition of Trading Price, which such agent shall initially be the Trustee and shall at no time be an Affiliate of the Company. The Company may, from time to time, change the Bid Solicitation Agent. "Board of Directors" means either the board of directors of the Company or any duly authorized committee of such board. "Board Resolution" means a resolution of the Board of Directors. "Business Day" means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York or place of payment. "Capital Stock" of any Person means any and all shares, units, interests, participations, rights in or other equivalents (however designated) of such Person's capital stock, other equity interests whether now outstanding or issued after the date of this Indenture, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any Preferred Stock, and any rights (other than debt securities convertible into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock. 1 "Certificated Securities" means Securities that are in the form of the Securities attached hereto as Exhibit B. "Change of Control" means the occurrence of any of the following events: (i) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one transaction or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, to any "person" (as that term is used in Section 13(d) of the Exchange Act); (ii) the adoption of a plan relating to the liquidation or dissolution of the Company; (iii) the consummation of any transaction (including, without limitation, any merger or consolidation) or the acquisition of any Voting Stock of the Company, the result of which is that any "person" (as defined above) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares; (iv) the Company consolidates with or merges with or into any Person, or any such Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property other than any such transaction where (a) the outstanding Voting Stock of the Company is changed into or exchanged for (1) Voting Stock of the surviving corporation which is not Disqualified Stock or (2) cash, securities and other property (other than Capital Stock of the surviving corporation) and (b) immediately after such transaction, the holders of Voting Stock of the Company immediately before such transaction beneficially own a majority of the Voting Stock of the surviving corporation; or (v) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors. "Class B Common Shares" means the common shares, without par value, of the Company existing on the date of this Indenture. "close of business" means 5:00 p.m. (New York City time). "Closing Price" means, with respect to any security on any date, the closing sale price (or if no closing sale price is reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and the average asked prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which such security is traded, or if such security is not listed on a U.S. national or regional securities exchange, as reported by the Nasdaq National Market. The Closing Price will be determined without reference to after-hours or extended market trading. If such security is not listed for trading on a U.S. national or regional securities exchange and not reported by the Nasdaq National Market on the relevant date, the "Closing Price" will be the last quoted bid for such security in the over-the-counter market on the relevant date as reported by the National Quotation Bureau Incorporated or similar organization. If such security is not so quoted, the "Closing Price" will be the average of the midpoint of the last bid and ask prices for such security on the relevant date from each of at least three nationally recognized independent investment banking firms selected by 2 the Company for this purpose (or if prices are not available from three such firms, from two such firms or, if prices are not available from two such firms, from one such firm). "Code" means the Internal Revenue Code of 1986, as amended from time to time. "Common Stock" means the common shares, without par value, of the Company existing on the date of this Indenture or any other shares of Capital Stock of the Company into which such Common Stock shall be reclassified or changed, including, subject to Section 10.05 below, in the event of a merger, consolidation or other similar transaction involving the Company that is otherwise permitted hereunder in which the Company is not the surviving Person, the common stock of such surviving corporation. "Company" means the party named as the "Company" in the preamble of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors. "Company Notice" means a notice to Holders delivered pursuant to Section 3.07 or Section 3.08. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by any Officer. "Continuing Directors" means, as of any date of determination, any member of the Company's board of directors who: (1) was a member of the board of directors on the date of this Indenture; or (2) was nominated for election or elected to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination or election. "Conversion Price" as of any date means $1,000 divided by the Conversion Rate as of such date. "Conversion Settlement Date" means (A) with respect to the Conversion Settlement Distribution (other than any Additional Shares which may be issuable pursuant to Section 10.01(c)), the third Business Day immediately following the last day of the Cash Settlement Averaging Period, and (B) with respect to any Additional Shares which may be issuable, the later of (i) the fifth Business Day following the effective date of any Change of Control transaction and (ii) the third Business Day immediately following the Cash Settlement Averaging Period. "Corporate Trust Office" means the designated office of the Trustee at which at any time its corporate trust business shall be principally administered, which office at the date hereof is located at 608-2nd Avenue South, MAC N9303-120, Minneapolis, MN 55479, Attention: Invacare Account Manager, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company). "Current Market Price" of the Common Stock on any day means the average of the Last Reported Sale Price per share of the Common Stock for each of the ten consecutive Trading Days ending on the earlier of the day in question and the Trading Day before the "Ex-Dividend Date" with respect to the issuance or distribution requiring such computation, subject to adjustment by the Board of Directors if another transaction requiring an adjustment to the Conversion Rate pursuant to Section 10.04 occurs during such ten day period. 3 "Default" means any event that is, or after notice or passage of time, would be, an Event of Default. "Designated Senior Debt" means (i) the Senior Secured Credit Facilities, (ii) the Senior Notes and (iii) any particular senior debt which has at the time of the giving of a Payment Blockage Notice (as defined herein) an aggregate outstanding principal amount in excess of $25 million, if the instrument creating or evidencing the same or the assumption or guarantee thereof (or related agreements or documents to which the Company is a party) expressly provides that such indebtedness shall be "Designated Senior Debt" for purposes of the Indenture (provided that such instrument, agreement or other document may place limitations and conditions on the right of such Senior Debt to exercise the rights of Designated Senior Debt). "Disqualified Stock" means any Capital Stock that, either by its terms or by the terms of any security into which it is convertible or exchangeable or otherwise, is or upon the happening of an event or passage of time would be, required to be redeemed prior to the final Stated Maturity of the principal of the debentures or is redeemable at the option of the holder thereof at any time prior to such final Stated Maturity (other than upon a Change of Control of the Company in circumstances where the Holders of the Securities would have similar rights), or is convertible into or exchangeable for debt securities at any time prior to such final Stated Maturity at the option of the holder thereof. "Domestic Subsidiary" means any Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for any indebtedness of the Company. "DTC" means The Depository Trust Company. "Ex-Dividend Date" means the first date upon which a sale of the Common Stock does not automatically transfer the right to receive the relevant dividend or distribution from the seller of the Common Stock, regular way on the relevant exchange or in the relevant market for the Common Stock, to its buyer. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. "Fair Market Value" or "fair market value" means the amount which a willing buyer would pay a willing seller in an arm's-length transaction. "Fundamental Change" means either a Change of Control or a Termination of Trading. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, which are in effect from time to time. "Global Securities" means Securities that are in the form of the Securities attached hereto as Exhibit A, and that are registered in the register of Securities in the name of a Depositary or a nominee thereof. "Guarantee" means the guarantee by any Guarantor of the Company's obligations under this Indenture and the Securities. 4 "Guarantor" means each Subsidiary of the Company that executes this Indenture as a guarantor on the Issue Date and each other Subsidiary of the Company that thereafter guarantees the Securities pursuant to the terms of this Indenture. "Holder" or "Securityholder" means a person in whose name a Security is registered on the Registrar's books. "Indebtedness" means, with respect to any Person, all obligations, whether or not contingent, of such Person (i)(a) for borrowed money (including, but not limited to, any indebtedness secured by a security interest, mortgage or other lien on its assets that is (A) given to secure all or part of the purchase price of property subject thereto, whether given to the vendor of such property or to another, or (B) existing on property at the time of acquisition thereof), (b) evidenced by a note, debenture, bond or other written instrument, (c) under a lease required to be capitalized on the balance sheet of the lessee under GAAP or under any lease or related document (including a purchase agreement) that provides that such Person is contractually obligated to purchase or cause a third party to purchase and thereby guarantee a minimum residual value of the lease property to the lessor and its obligations under such lease or related document to purchase or to cause a third party to purchase such leased property, (d) in respect of letters of credit, bank guarantees or bankers' acceptances (including reimbursement obligations with respect to any of the foregoing), (e) with respect to indebtedness secured by a mortgage, pledge, lien, encumbrance, charge or adverse claim affecting title or resulting in an encumbrance to which the property or assets of such Person are subject, whether or not the obligation secured thereby shall have been assumed by or shall otherwise be such Person's legal liability, (f) in respect of the balance of deferred and unpaid purchase price of any property or assets, (g) under interest rate or currency swap agreements, cap, floor and collar agreements, spot and forward contracts and similar agreements and arrangements; (ii) with respect to any obligation of others of the type described in the preceding clause (i) or under clause (iii) below assumed by or guaranteed in any manner by such Person or in effect guaranteed by such Person through an agreement to purchase (including, without limitation, "take or pay" and similar arrangements), contingent or otherwise (and the obligations of such Person under any such assumptions, guarantees or other such arrangements); and (iii) any and all deferrals, renewals, extensions, refinancings and refundings of, or amendments, modifications or supplements to, any of the foregoing. "Indenture" means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof. 5 "Interest" means interest payable on each Security pursuant to Section 1 of the Securities. "Interest Payment Date" means February 1 and August 1 of each year, commencing August 1, 2007. "Interest Record Date" means January 15 and July 15 of each year. "Issue Date" of any Security means the date on which the Security was originally issued or deemed issued as set forth on the face of the Security. "Last Reported Sale Price" means, with respect to any security on any date, the closing sale price (or if no closing sale price is reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and the average asked prices) on that date as reported by The New York Stock Exchange or, if such security is not reported by The New York Stock Exchange, in composite transactions for the principal U.S. national or regional securities exchange on which such security is traded. The closing sale price will be determined without reference to after-hours or extended market trading. If the such security is not listed for trading on a U.S. national or regional securities exchange and not reported by The New York Stock Exchange on the relevant date, the "Last Reported Sale Price" shall be the last quoted bid price for such security in the over-the-counter market on the relevant date as reported by the National Quotation Bureau Incorporated or similar organization. If such security is not so quoted, the "Last Reported Sale Price" shall be the average of the midpoint of the last bid and ask prices for such security on the relevant date from each of at least three independent nationally recognized investment banking firms selected by the Company for this purpose (or if prices are not available from three such firms, from two such firms or, if prices are not available from two such firms, from one such firm). "Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Offering Memorandum" means the offering memorandum of the Company dated February 5, 2007 relating to the offering of the Securities. "Officer" means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller, the Chief Accounting Officer, the Secretary or any Assistant Secretary of the Company. "Officer's Certificate" means a written certificate containing the information specified in Sections 13.04 and 13.05, signed in the name of the Company by any Officer, and delivered to the Trustee. An Officer's Certificate given pursuant to Section 4.03 shall be signed by the principal executive officer, principal financial officer or principal accounting officer of the Company but need not contain the information specified in Sections 13.04 and 13.05. "Opinion of Counsel" means a written opinion containing the information specified in Sections 13.04 and 13.05, from legal counsel. The counsel may be an employee of, or counsel to, the Company who is reasonably acceptable to the Trustee. "Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. 6 "Purchase Agreement" means the Purchase Agreement dated February 5, 2007 among the Company, the Guarantors party thereto and Banc of America Securities LLC, KeyBanc Capital Markets, a division of McDonald Investments Inc., BMO Capital Markets Corp. and SunTrust Capital Markets, Inc., relating to the Securities. "Redemption Date" means the date specified in a notice of redemption on which the Securities may be redeemed in accordance with the terms of the Securities and this Indenture. "Registration Rights Agreement" means the Resale Registration Rights Agreement, dated as of February 12, 2007, among the Company, the Guarantors party thereto and Banc of America Securities LLC, KeyBanc Capital Markets, a division of McDonald Investments Inc., BMO Capital Markets Corp. and SunTrust Capital Markets, Inc. "Representative" means (a) the indenture trustee or other trustee, agent or representative for any Senior Debt or (b) with respect to any Senior Debt that does not have any such trustee, agent or other representative, (i) in the case of such Senior Debt issued pursuant to an agreement providing for voting arrangements as among the holders or owners of such Senior Debt, any holder or owner of such Senior Debt acting with the consent of the required persons necessary to bind such holders or owners of such Senior Debt and (ii) in the case of all other such Senior Debt, the holder or owner of such Senior Debt. "Responsible Officer" means, when used with respect to the Trustee, any officer of the Trustee within the Corporate Trust Services department (or any successor department) of the Trustee located at the Corporate Trust Office of the Trustee who has direct responsibility for the administration of this Indenture and, for the purposes of Sections 7.01(c)(2) and 7.05 shall also mean any other officer of the Trustee to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject matter. "Restricted Global Security" means a Global Security required to bear the restricted legend indicated in the form of Security annexed as Exhibit A. "SEC" means the Securities and Exchange Commission. "Securities" means the $135 million aggregate principal amount of 4.125% Convertible Senior Subordinated Debentures due 2027, or any of them, as amended or supplemented from time to time, that are issued under this Indenture on the date of this Indenture (the "Initial Securities" and each an "Initial Security") or on or before March 13, 2007 if the Initial Purchasers exercise their over-allotment option (the "Over-allotment Securities" and, together with the Initial Securities, the "Securities" and each a "Security"). Any Over-allotment Securities issued under this Indenture shall be of the same series as the Initial Securities, have the same terms, conditions and CUSIP number as the Initial Securities and shall rank equally with the Initial Securities. The Initial Securities and any Over-allotment Securities issued under this Indenture shall be treated as a single class for all purposes under this Indenture, including, without limitation, interest payments, waivers, amendments, redemptions, repurchases, offers to purchase and conversions. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. "Securityholder" or "Holder" means a person in whose name a Security is registered on the Registrar's books. 7 "Senior Notes" means the $175 million aggregate principal amount of 9 3/4% Senior Notes due 2015 issued by the Company under the Senior Notes Indenture on the Issue Date. "Senior Notes Indenture" means the Senior Notes Indenture dated as of the Issue Date, among the Company, as issuer, certain of its Subsidiaries, as guarantors, and Wells Fargo Bank, N.A., as trustee, pursuant to which the Senior Notes are issued. "Senior Debt" means the principal of, premium, if any, and interest on, rent under, and any other amounts payable on or in or in respect of any of the Company's Indebtedness (including, without limitation, any obligations in respect of such Indebtedness and any interest accruing after the filing of a petition by or against the Company under any bankruptcy law, whether or not allowed as a claim after such filing in any proceeding under such bankruptcy law), whether outstanding on the date of this Indenture or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company (including all deferrals, renewals, extensions, refinancings or refundings of, or amendments, modifications or supplements to the foregoing). Senior debt includes the Senior Secured Credit Facilities and the Senior Notes. However, Senior Debt does not include: (1) indebtedness evidenced by the Securities, (2) any liability for federal, state, local or other taxes owed or owing by the Company, (3) the Company's indebtedness to any of its Subsidiaries except to the extent such indebtedness is a type described in clause (ii) of the definition of Indebtedness, (4) the Company's trade payables for goods, services or materials purchased in the ordinary course of business (other than, to the extent they may otherwise constitute such trade payables, any obligations of the type described in clause (ii) of the definition of Indebtedness), and (5) any particular indebtedness in which the instrument creating or evidencing the same expressly provides that such indebtedness shall not be senior in right of payment to, or is pari passu with, or is subordinated or junior to, the Securities. "Senior Secured Credit Facilities" means the credit agreement, dated as of February 12, 2007, among the Company, as borrower, certain of its Subsidiaries, as borrowers and guarantors, and the lenders named therein, including any deferrals, renewals, extensions, replacements, refinancings or refundings thereof, or amendments, modifications or supplements thereto and any agreement providing therefor whether by or with the same or any other lender, creditor, group of lenders or group of creditors and including the related notes, guarantee agreements and other instruments and agreements executed in connection therewith. "Significant Subsidiary" means any subsidiary of the Company that is a significant subsidiary at any determination date pursuant to Regulation S-X, Rule 1-02(w)(1) or (2). "Stated Maturity" means, when used with respect to any Indebtedness or any installment of interest thereon, the dates specified in such Indebtedness as the fixed date on which the principal of such Indebtedness or such installment of interest, as the case may be, is due and payable. "Stock Price" means the price per share of Common Stock paid in connection with a Change of Control transaction pursuant to which Additional Shares are issuable as set forth in Section 10.01(c) hereof, which shall be equal to (i) if Holders of Common Stock receive only cash in such Change of 8 Control transaction, the cash amount paid per share of Common Stock and (ii) in all other cases, the average of the Last Reported Sale Prices of the Common Stock on the five Trading Days prior to, but not including, the effective date of such Change of Control transaction. "Subsidiary" means any person of which at least a majority of the outstanding Voting Stock shall at the time directly or indirectly be owned or controlled by the Company or by one or more Subsidiaries or by the Company and one or more Subsidiaries. "Termination of Trading" means the occurrence, at any time, of the Common Stock of the Company (or other common stock into which the Securities are then convertible) being neither listed for trading on a U.S. national securities exchange nor approved for trading on The New York Stock Exchange nor traded on the over-the-counter market as reported by the National Quotation Bureau or similar organization. "TIA" means the Trust Indenture Act of 1939 as in effect on the date of this Indenture, provided, however, that in the event the TIA is amended after such date, TIA means, to the extent required by any such amendment, the TIA as so amended. "Trading Day" means a day during which trading in securities generally occurs on The New York Stock Exchange or, if the Common Stock is not quoted on The New York Stock Exchange, then a day during which trading in securities generally occurs on the principal U.S. securities exchange on which the Common Stock is then listed or, if the Common Stock is not quoted on The New York Stock Exchange or listed on a U.S. national or regional securities exchange, then on the other principal market on which the Common Stock is then traded or quoted. "Trading Price" of the Securities on any date of determination means the average of the secondary market bid quotations per $1,000 principal amount of the Securities obtained by the Bid Solicitation Agent for $5,000,000 aggregate principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Company selects, provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent, but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 aggregate principal amount of the Securities from a nationally recognized securities dealer, or in the Company's reasonable judgment, the bid quotations are not indicative of the secondary market value of $1,000 principal amount of the Securities, then for purposes of determining whether the condition to conversion of the Securities set forth in Section 10.01(a)(2) has been satisfied, the Trading Price of the Securities will be deemed to be less than 98% of the product of the Closing Price of the Common Stock and the Conversion Rate on such date. "Trustee" means the party named as the "Trustee" in the preamble of this Indenture unless and until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors. "Voting Stock" of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). 9 Section 1.02 Other Definitions.
DEFINED IN TERMS: SECTION - ------ -------------- "Act" 1.05(a) "Acquisition Value" 10.01(d) "Additional Interest Notice" 4.06 "Additional Shares" 10.01(c) "Adjustment Event" 10.04(j) "Agent Members" 2.12(e)(v) "Bankruptcy Law" 6.01(i) "cash" 3.01 "Cash Amount" 10.03(a)(iii) "Cash Settlement Averaging Period" 10.03(a) "Cash Settlement Notice Period" 10.03(a) "contingent debt regulations" 2.14(a) "Conversion Agent" 2.03 "Conversion Date" 10.02(b) "Conversion Notice" 10.02(a) "Conversion Obligation" 10.01(a) "Conversion Rate" 10.02 "Conversion Retraction Period" 10.03(a) "Conversion Settlement Distribution" 10.03(a) "Depositary" 2.01(b) "Determination Date" 10.04(j) "Distributed Assets" 10.04(d) "Dividend Threshold Amount" 10.04(e) "effective date" 10.01(c) "Event of Default" 6.01 "Exchange Property" 10.01(b)(2) "Expiration Time" 10.04(f) "Extraordinary Cash Dividend" 10.04(e) "Final Notice Date" 10.03(a) "Fiscal Quarter" 10.01(a)(i) "Fundamental Change Repurchase Date" 3.08(a) "Fundamental Change Repurchase Notice" 3.08(c) "Fundamental Change Repurchase Price" 3.08(a) "junior securities" 11.08 "legal holiday" 13.08 "Measurement Period" 10.01(a)(ii) "Non-Payment Default" 11.02(a)(ii) "Notice of Default" 6.01 "Paying Agent" 2.03 "Payment Blockage Notice" 11.02(a)(ii) "Payment Default" 11.02(a)(i) "Public Acquirer Change of Control 10.01(d) "Public Acquirer Common Stock" 10.01(d) "Purchased Shares" 10.04(f)(i) "QIB" 2.01(b)
10 "Redemption Price" 3.01 "Registrar" 2.03 "Repurchase Date" 3.07(a) "Repurchase Notice" 3.07(b) "successor Guarantor Person" 5.01(b)(1)(B) "successor Person" 5.01(a)(1)(A) "Trigger Event" 10.04(d) "Valuation Period" 10.01(d)(ii)

Section 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings "Commission" means the SEC. "indenture securities" means the Securities. "indenture security holder" means a Securityholder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the Securities and the Guarantees means the Company and the Guarantors, respectively. All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rules have the meanings assigned to them by such definitions. Section 1.04 Rules of Construction. Unless the context otherwise requires: (i) a term has the meaning assigned to it; (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles as in effect from time to time; (iii) "including" means including, without limitation; (iv) words in the singular include the plural, and words in the plural include the singular; and (v) references to Sections and Articles are to references to Sections and Articles of this Indenture. 11 Section 1.05 Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, as described in Section 13.02. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.05. (b) The fact and date of the execution by any person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in a capacity other than such signer's individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer's authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The principal amount and serial number of any Security and the ownership of Securities shall be proved by the register for the Securities. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. (e) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. 12 ARTICLE 2 THE SECURITIES Section 2.01 Form and Dating. (a) The Securities and the Trustee's certificate of authentication shall be substantially in the form of Exhibits A and B, which are a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage (provided that any such notation, legend or endorsement required by usage is in a form acceptable to the Company). The Company shall provide any such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its authentication. The Securities may, but need not, have the corporate seal of the Company or a facsimile thereof affixed thereto or imprinted thereon. (b) Global Securities. All of the Securities are initially being offered and sold to qualified institutional buyers as defined in Rule 144A (collectively, "QIBs" or individually, each a "QIB") in reliance on Rule 144A under the Securities Act and Global Securities shall be issued initially in the form of a Restricted Global Security (until such time as the Securities shall be registered pursuant to the Registration Rights Agreement), which shall be deposited with the Trustee at its Corporate Trust Office, as custodian for the Depositary (as defined below) and registered in the name of The Depository Trust Company ("DTC") or the nominee thereof (DTC, or any successor thereto, and any such nominee being hereinafter referred to as the "Depositary"), duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary as hereinafter provided. (c) Global Securities in General. Each Global Security shall represent such of the outstanding Securities as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions, repurchases and conversions. Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.12 hereof, and shall be made on the records of the Trustee and the Depositary. (d) Book-Entry Provisions. This Section 2.01(d) shall apply only to Global Securities deposited with or on behalf of the Depositary. The Company shall execute and the Trustee shall, in accordance with this Section 2.01(d), authenticate and deliver initially one or more Global Securities that (a) shall be registered in the name of the Depositary or a nominee thereof, (b) shall be delivered by the Trustee to the Depositary or held by the Trustee pursuant to the Depositary's instructions and (c) shall be substantially in the form of Exhibit A attached hereto. (e) Certificated Securities. Securities not issued as interests in the Global Securities shall be issued in certificated form substantially in the form of Exhibit B attached hereto. 13 Section 2.02 Execution and Authentication. The Securities shall be executed on behalf of the Company by one Officer. The signature of such Officer on the Securities may be manual or facsimile. Securities bearing the manual or facsimile signatures of an individual who was, at the time of the execution of the Securities, an Officer shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of authentication of such Securities. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. The Trustee shall authenticate and deliver the Securities for original issue in an aggregate principal amount of up to $135 million upon one or more Company Orders without any further action by the Company (other than as contemplated in Section 13.03, Section 13.04 and Section 13.05 hereof). The aggregate principal amount of the Securities due at the Stated Maturity thereof outstanding at any time may not exceed the amount set forth in the foregoing sentence. The Securities shall be issued only in registered form without coupons and only in denominations of $1,000 of principal amount and any integral multiple of $1,000. Section 2.03 Registrar, Paying Agent and Conversion Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange ("Registrar"), an office or agency where Securities may be presented for purchase or payment ("Paying Agent") and an office or agency where Securities may be presented for conversion ("Conversion Agent"). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term Paying Agent includes any additional paying agent, including any named pursuant to Section 4.07. The term Conversion Agent includes any additional conversion agent, including any named pursuant to Section 4.07. The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar (in each case, if such Registrar, agent or co-registrar is a Person other than the Trustee). The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall promptly notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar, Conversion Agent or co-registrar. The Company initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in connection with the Securities. 14 Section 2.04 Paying Agent to Hold Money and Securities in Trust. Except as otherwise provided herein, on or prior to each due date of payments in respect of any Security, the Company shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on the due date) or shares of Common Stock sufficient to make such payments when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee all money and shares of Common Stock held by the Paying Agent for the making of payments in respect of the Securities and shall promptly notify the Trustee of any Default by the Company in making any such payment. At any time during the continuance of any such Default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay to the Trustee all money and shares of Common Stock so held in trust. If the Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall segregate the money and shares of Common Stock held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money and shares of Common Stock held by it to the Trustee and to account for any funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall have no further liability for the money or shares of Common Stock. Section 2.05 Securityholder Lists. The Trustee shall preserve the most recent list available to it of the names and addresses of Securityholders. If the Trustee is not the Registrar, the Company shall cause to be furnished to the Trustee at least semiannually on January 15 and July 15 a listing of Securityholders dated within 15 days of the date on which the list is furnished and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders. Section 2.06 Transfer and Exchange. (a) Subject to Section 2.12 hereof, upon surrender for registration of transfer of any Security, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Securityholder or such Securityholder's attorney duly authorized in writing, at the office or agency of the Company designated as Registrar or co-registrar pursuant to Section 2.03, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denomination or denominations, of a like aggregate principal amount. The Company shall not charge a service charge for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the transfer or exchange of the Securities from the Securityholder requesting such transfer or exchange. At the option of the Holder, Securities may be exchanged for other Securities of any authorized denomination or denominations, of a like aggregate principal amount upon surrender of the Securities to be exchanged, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Securityholder or such Securityholder's attorney duly authorized in writing, at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. The Company shall not be required to make, and the Registrar need not register, transfers or exchanges of Securities selected for redemption (except, in the case of Securities to be redeemed in part, the portion thereof not to be redeemed) or any Securities in respect of which a Repurchase Notice or Fundamental Change Repurchase Notice has been given and not withdrawn by the Holder thereof in 15 accordance with the terms of this Indenture (except, in the case of Securities to be purchased in part, the portion thereof not to be purchased) or any Securities for a period of 15 days before the mailing of a notice of redemption of Securities to be redeemed. (b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole or in part, shall be made only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a Global Security shall, except as set forth in Section 2.12, be limited to transfers of such Global Security in whole or in part, to the Depositary, to nominees of the Depositary or to a successor of the Depositary or such successor's nominee. (c) Successive registrations and registrations of transfers and exchanges as aforesaid may be made from time to time as desired, and each such registration shall be noted on the register for the Securities. (d) Except as otherwise set forth in this Indenture, any such action taken by a Holder shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor, irrespective of whether any notation in regard thereto is made upon such Security or any Security issued in exchange or substitution therefor. (e) Any Registrar appointed pursuant to Section 2.03 hereof shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar of Securities upon transfer or exchange of Securities. (f) No Registrar shall be required to make registrations of transfer or exchange of Securities during any periods designated in the text of the Securities or in this Indenture as periods during which such registration of transfers and exchanges need not be made. Section 2.07 Replacement Securities. If (a) any mutilated Security is surrendered to the Trustee, or (b) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in exchange for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount, bearing a certificate number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, or is about to be redeemed or purchased by the Company pursuant to Article 3 hereof, the Company in its discretion may, instead of issuing a new Security, pay or purchase such Security, as the case may be. Upon the issuance of any new Securities under this Section 2.07, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security issued pursuant to this Section 2.07 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original contractual obligation of the Company, whether or not the 16 destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder. The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. Section 2.08 Outstanding Securities; Determinations of Holders' Action. Securities outstanding at any time are all the Securities authenticated by the Trustee except for those cancelled by it, those redeemed or purchased pursuant to Section 2.07, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding. A Security does not cease to be outstanding because the Company, a Guarantor or an Affiliate thereof holds the Security; provided, however, that in determining whether the Holders of the requisite principal amount of Securities have given or concurred in any request, demand, authorization, direction, notice, consent, waiver, or other Act hereunder, Securities owned by the Company or any other obligor upon the Securities, a Guarantor or any Affiliate of the Company or such other obligor or Guarantor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other act, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Subject to the foregoing, only Securities outstanding at the time of such determination shall be considered in any such determination (including, without limitation, determinations pursuant to Article 6 and Article 9). If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser. If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date, or on the Business Day immediately following a Repurchase Date or a Fundamental Change Repurchase Date, or on Stated Maturity, money or securities, if permitted hereunder, sufficient to pay Securities payable on that date, then from and after such Redemption Date, Repurchase Date, Fundamental Change Repurchase Date or Stated Maturity, as the case may be, such Securities shall cease to be outstanding and Interest and Additional Interest, if any, on such Securities shall cease to accrue and the rights of the Holders therein shall terminate whether or not the Securities are surrendered to the Paying Agent (by effecting book entry transfer of the Securities or delivering Certificated Securities), other than the right to receive such payment upon such surrender; provided, that if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made. If a Security is converted in accordance with Article 10, then from and after the time of conversion on the date of conversion, such Security shall cease to be outstanding and Interest and Additional Interest, if any, shall cease to accrue and the rights of the Holders therein shall terminate (other than the right to receive the Conversion Settlement Distribution). Section 2.09 Temporary Securities. Pending the preparation of Certificated Securities, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the Certificated Securities in lieu of which they are issued and with such appropriate insertions, 17 omissions, substitutions and other variations as the Officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. If temporary Securities are issued, the Company shall cause Certificated Securities to be prepared without unreasonable delay. After the preparation of Certificated Securities, the temporary Securities shall be exchangeable for Certificated Securities upon surrender of the temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 2.03, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of Certificated Securities of authorized denominations. Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as Certificated Securities. Section 2.10 Cancellation. All Securities surrendered for payment, purchase by the Company pursuant to Article 3, conversion, redemption or registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation other than in connection with registrations of transfer or exchange or that any Holder has converted pursuant to Article 10. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 2.10, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with the Trustee's customary procedure. Section 2.11 Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of the principal amount of the Security or any portion thereof, or the payment of any Redemption Price, Repurchase Price or Fundamental Change Repurchase Price in respect thereof, and Interest or Additional Interest thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Section 2.12 Global Securities. (a) Notwithstanding any other provisions of this Indenture or the Securities, (A) transfers of a Global Security, in whole or in part, shall be made only in accordance with Section 2.06 and Section 2.12(a)(i) below, (B) transfers of a beneficial interest in a Global Security for a Certificated Security shall comply with Section 2.06 and Section 2.12(a)(ii) below and Section 2.12(e) below, and (C) transfers of a Certificated Security shall comply with Section 2.06, Section 2.12(a)(iii) and Section 2.12(a)(iv) below. (i) Transfer of Global Security. A Global Security may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person may be registered; provided that this Section 2.12(a)(i) shall not prohibit any transfer of a Security that is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a Security to any Person shall be effective under this Indenture or the Securities unless and 18 until such Security has been registered in the name of such Person. Nothing in this Section 2.12(a)(i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Security effected in accordance with the other provisions of this Section 2.12. (ii) Restrictions on Transfer of a Beneficial Interest in a Global Security for a Certificated Security. A beneficial interest in a Global Security may not be exchanged for a Certificated Security except upon satisfaction of the requirements set forth in this paragraph below and in Section 2.12(e) below. Upon receipt by the Trustee of a request to transfer a beneficial interest in a Global Security in accordance with Applicable Procedures for a Certificated Security in the form satisfactory to the Trustee, together with written instructions to the Trustee to make, or direct the Registrar to make, an adjustment on its books and records with respect to such Global Security to reflect a decrease in the aggregate principal amount of the Securities represented by the Global Security, such instructions to contain information regarding the Depositary account to be decreased, then the Trustee shall cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of the Securities represented by the Global Security to be decreased by the aggregate principal amount of the Certificated Security to be issued, shall issue such Certificated Security and shall debit or cause to be debited to the account of the person specified in such instructions a beneficial interest in the Global Security equal to the principal amount of the Certificated Security so issued. (iii) Transfer and Exchange of Certificated Securities. When Certificated Securities are presented to the Registrar with a request: (y) to register the transfer of such Certificated Securities; or (z) to exchange such Certificated Securities for an equal principal amount of Certificated Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Certificated Securities surrendered for transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing. (iv) Restrictions on Transfer or Exchange of a Certificated Security for a Beneficial Interest in a Global Security. A Certificated Security may not be transferred or exchanged for a beneficial interest in a Global Security except upon receipt by the Trustee of a Certificated Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Security to reflect an increase in the aggregate principal amount of the Securities represented by the Global Security, such instructions to contain information regarding the Depositary account to be credited with such increase. The Trustee shall cancel such Certificated Security and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Securities represented by the Global Security to be increased by the aggregate principal amount of the Certificated Security to be exchanged, and shall credit or cause to be credited to the account of the person specified in such instructions a beneficial interest in the Global Security equal to the principal amount of the Certificated Security so cancelled. If no Global Securities are then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officer's Certificate, a new Global Security in the appropriate principal amount. 19 (b) [Reserved]. (c) [Reserved]. (d) [Reserved]. (e) The provisions of clauses (i), (ii), (iii), (iv) and (v) below shall apply only to Global Securities: (i) Notwithstanding any other provisions of this Indenture or the Securities, a Global Security shall not be exchanged in whole or in part for a Security registered in the name of any Person other than the Depositary or one or more nominees thereof, provided that a Global Security may be exchanged for Securities registered in the names of any Person designated by the Depositary in the event that (i) the Depositary has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or such Depositary has ceased to be a "clearing agency" registered under Exchange Act, and a successor Depositary is not appointed by the Company within 90 days (ii) the Company determines at any time that the Securities shall no longer be represented by Global Securities and shall inform such Depositary of such determination in writing and participants in such Depositary elect to withdraw their beneficial interests in the Global Securities from such Depositary, following notification by the Depositary of their right to do so or (iii) an Event of Default has occurred and is continuing. Any Global Security exchanged pursuant to clause (i) above shall be so exchanged in whole and not in part, and any Global Security exchanged pursuant to clauses (ii) or (iii) above may be exchanged in whole or from time to time in part as directed by the Depositary. Any Security issued in exchange for a Global Security or any portion thereof shall be a Global Security; provided that any such Security so issued that is registered in the name of a person other than the Depositary or a nominee thereof or any successor of either of the foregoing pursuant to this paragraph shall not be a Global Security. (ii) Securities issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully registered form, shall have an aggregate principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable legends provided for herein. Any Global Security to be exchanged in whole shall be surrendered by the Depositary to the Registrar. With regard to any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Security, the principal amount thereof shall be reduced by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof. (iii) Subject to the provisions of clause (v) below, the registered Holder may grant proxies and otherwise authorize any person, including Agent Members (as defined below) and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities. (iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company shall promptly make available to the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form. (v) Neither any members of, or participants in, the Depositary (collectively, the "Agent Members") nor any other persons on whose behalf Agent Members may act shall have any rights under 20 this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Security. (vi) Except as expressly set forth in this Indenture, including Sections 2.12(a)(ii) and 2.12(e), none of the Trustee, any Paying Agent, Conversion Agent, the Company or the Registrar shall have any responsibility or obligation to any beneficial owner in the Global Securities, a member of, or a participant in the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Global Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Global Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities shall be given or made only to or upon the order of the registered Holders (which shall be, in the case of a Global Security, the Depositary or its nominee). The rights of beneficial owners in the Global Securities shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. Other than as set forth in this Indenture, the Trustee, any Paying Agent, the Conversion Agent, the Company and the Registrar may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners. Except as expressly set forth in this Indenture, including Sections 2.12(a)(ii) and 2.12(e), the Trustee, each Paying Agent, the Conversion Agent, the Company and the Registrar shall be entitled to deal with any depositary (including the Depositary), and any nominee thereof, that is the Holder of any Global Securities as a Holder for all purposes of this Indenture relating to such Global Securities (including the payment of principal, Interest and Additional Interest, if any, and the giving of instructions or directions by or to the owner or Holder of a beneficial ownership interest in such Global Securities) as the sole Holder of such Global Securities and shall have no obligations to the beneficial owners thereof. None of the Trustee, any Paying Agent, the Conversion Agent, the Company or the Registrar shall have any responsibility or liability for any acts or omissions of any such depositary with respect to such Global Securities, for the records of any such depositary, including records in respect of beneficial ownership interests in respect of any such Global Securities, for any transactions between such depositary and any participant in such depositary or between or among any such depositary, any such participant and/or any holder or owner of a beneficial interest in such Global Securities or for any transfers of beneficial interests in any such Global Securities. (f) The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. The Trustee shall have no responsibility for the actions or omissions of the Depositary, or the accuracy of the books and records of the Depositary. 21 Section 2.13 CUSIP Numbers. The Company may issue the Securities with one or more "CUSIP," "ISIN" or other similar numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP," "ISIN" or other similar numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the CUSIP, ISIN or other similar numbers. ARTICLE 3 REDEMPTION AND REPURCHASES Section 3.01 Company's Right to Redeem; Notices to Trustee. Prior to February 6, 2012, the Securities shall not be redeemable at the Company's option. On or after February 6, 2012 through and including February 1, 2017, the Company, at its option, may redeem the Securities for U.S. legal tender ("cash"), in whole or in part, at a redemption price (the "Redemption Price") equal to 100% of the principal amount of the Securities redeemed, plus any accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on the Securities redeemed up to, but not including, the Redemption Date if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day is more than 130% of the Conversion Price in effect on such last Trading Day (such last Trading Day being no later than February 1, 2017). On or after February 1, 2017, the Company, at its option, may redeem the Securities for cash at any time, in whole or in part, at a Redemption Price equal to 100% of the principal amount of the Securities redeemed, plus any accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on the Securities redeemed up to, but not including, the Redemption Date. If the Redemption Date is on a date that is after an Interest Record Date and on or prior to the corresponding Interest Payment Date, the Redemption Price shall be 100% of the principal amount of the Securities redeemed but shall not include accrued and unpaid Interest and accrued and unpaid Additional Interest, if any. Instead, the Company shall pay such Interest and Additional Interest, if any, on the Interest Payment Date to the Holder of record on the corresponding Interest Record Date. If the Company elects to redeem Securities pursuant to this Section 3.01, it shall notify the Trustee in writing of such election together with the Redemption Date, the Conversion Rate, the principal amount of Securities to be redeemed and the Redemption Price. Notwithstanding the foregoing, the Company may not redeem the Securities if it has failed to pay any Interest, including Additional Interest, if any, on the Securities when due and such failure is continuing. The Company shall give the notice to the Trustee provided for in this Section 3.01 by a Company Order, at least 45 days but not more than 75 days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee). Section 3.02 Selection of Securities to Be Redeemed. If less than all of the Securities are to be redeemed, unless the procedures of the Depositary provide otherwise, the Trustee shall select the Securities to be redeemed by lot, on a pro rata basis or by another method the Trustee considers fair and appropriate (so long as such method is not prohibited by the rules of any stock exchange or quotation association on which the Securities are then traded or quoted). The Trustee may select for redemption portions of the principal amount of Securities that have denominations larger than $1,000. 22 Securities and portions of Securities that the Trustee selects shall be in principal amounts of $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption. The Trustee shall notify the Company promptly of the Securities or portions of the Securities selected to be redeemed and, in the case of any Securities selected for partial redemption, the method it has chosen for the selection of the Security. Following a notice of redemption, Securities and portions of Securities that have been called for redemption are convertible, pursuant to Section 10.01(a)(2), by the Holder until the close of business on the second Business Day prior to the Redemption Date. If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities that have been converted during a selection of Securities to be redeemed may be treated by the Trustee as outstanding for the purpose of such selection. Section 3.03 Notice of Redemption. At least 30 days but not more than 60 days before a Redemption Date, the Company shall deliver a notice of redemption (substantially in the form of Exhibit C) to each Holder of Securities to be redeemed. The notice shall identify the Securities to be redeemed and shall state (along with any other information the Company wishes to include): (i) the Redemption Date; (ii) the Redemption Price; (iii) the Conversion Rate; (iv) the name and address of the Paying Agent and Conversion Agent; (v) that Securities that have been called for redemption may be converted at any time before the close of business on the second Business Day prior to the Redemption Date; (vi) that Securities called for redemption and not converted shall be redeemed on the Redemption Date; (vii) that Holders who want to convert their Securities must satisfy the requirements set forth in the Securities; (viii) that Securities called for redemption must be surrendered to the Paying Agent (by effecting book entry transfer of the Securities or delivering Certificated Securities, together with necessary endorsements, as the case may be) to collect the Redemption Price; (ix) if fewer than all of the outstanding Securities are to be redeemed, the certificate numbers, if any, and principal amounts of the particular Securities to be redeemed; (x) that, unless the Company defaults in making payment of such Redemption Price, Interest and Additional Interest, if any, on the Securities called for redemption shall cease to accrue from and after the Redemption Date; and 23 (xi) the "CUSIP," "ISIN" or other similar number(s), as the case may be, of the Securities being redeemed. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at the Company's expense, provided that the Company makes such request at least seven Business Days (or such shorter period as may be satisfactory to the Trustee) prior to the date by which such notice of redemption must be given to Holders in accordance with this Section 3.03. Section 3.04 Effect of Notice of Redemption. Once notice of redemption is given, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price stated in the notice except for Securities that are converted in accordance with the terms of this Indenture. Upon surrender to the Paying Agent, such Securities shall be paid at the Redemption Price stated in the notice and from and after the Redemption Date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear Interest and Additional Interest, if any, and the rights of the Holders therein shall terminate (other than the right to receive the Redemption Price). Section 3.05 Deposit of Redemption Price. Prior to 10:00 a.m. (New York City time), on the Redemption Date, the Company shall deposit with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all Securities to be redeemed on that date other than Securities or portions of Securities called for redemption which on or prior thereto have been delivered by the Company to the Trustee for cancellation or have been converted. The Paying Agent shall as promptly as practicable return to the Company any money not required for that purpose because of conversion of Securities pursuant to Article 10. If such money is then held by the Company or a Subsidiary or an Affiliate of either in trust and is not required for such purpose it shall be discharged from such trust. Section 3.06 Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall execute and the Trustee shall, without charge, authenticate and deliver to the Holder a new Security in an authorized denomination equal in principal amount to the unredeemed portion of the Security surrendered. Section 3.07 Repurchase of Securities by the Company at Option of the Holder. (a) On each of February 1, 2017 and February 1, 2022 (each, a "Repurchase Date"), each Holder shall have the option to require the Company to repurchase Securities for which that Holder has properly delivered and not withdrawn a written Repurchase Notice (as defined below) at a repurchase price in cash equal to 100% of the principal amount of those Securities, plus accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on those Securities, to, but not including, such Repurchase Date (the "Repurchase Price"); provided that if the Repurchase Date is on a date that is after an Interest Record Date and on or prior to the corresponding Interest Payment Date, the Repurchase Price shall be 100% of the principal amount of the Securities repurchased but shall not include accrued and unpaid Interest and accrued and unpaid Additional Interest, if any. Instead, the Company shall pay such accrued and unpaid Interest and Additional Interest, if any, on the Interest Payment Date, to the Holder of Record on the corresponding Interest Record Date. Not later than 25 Business Days prior to any Repurchase Date, the Company shall deliver a Company Notice (substantially in the form of Exhibit D) to 24 the Trustee and to each Holder. The Company Notice shall include a form of Repurchase Notice to be completed by a Holder and shall state: (i) the Repurchase Date, the Repurchase Price and the Conversion Rate; (ii) the name and address of the Paying Agent and the Conversion Agent; (iii) that Securities as to which a Repurchase Notice has been given may be converted if they are otherwise convertible only in accordance with Article 10 hereof and the terms of the Securities if the applicable Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; (iv) that Securities must be surrendered to the Paying Agent (by effecting book entry transfer of the Securities or delivering Certificated Securities, together with necessary endorsements, as the case may be) to collect payment; (v) that the Repurchase Price for any security as to which a Repurchase Notice has been given and not withdrawn shall be paid promptly following the later of the Business Day immediately following the Repurchase Date and the time of surrender of such Security as described in clause (iv) above; (vi) the procedures the Holder must follow to exercise its right to require the Company to repurchase such Holder's Securities under this Section 3.07 and a brief description of that right; (vii) briefly, the conversion rights, if any, that exist at the date of the Company Notice or as a result of the Company Notice with respect to the Securities; (viii) the procedures for withdrawing a Repurchase Notice; (ix) that, unless the Company defaults in making payment on Securities for which a Repurchase Notice has been submitted, Interest or Additional Interest, if any, on such Securities shall cease to accrue from and after the Repurchase Date; and (x) the "CUSIP," "ISIN" or other similar number(s), as the case may be, of the Securities. At the Company's request, the Trustee shall give such Company Notice to each Holder in the Company's name and at the Company's expense; provided, however, that, in all cases, the text of such Company Notice shall be prepared by the Company. (b) A Holder may exercise its rights specified in Section 3.07(a) upon delivery to the Paying Agent of a written notice of repurchase (a "Repurchase Notice") during the period beginning at any time from the opening of business on the date that is 25 Business Days prior to the relevant Repurchase Date until the close of business on the second Business Day prior to such Repurchase Date, stating: (i) if Certificated Securities have been issued, the certificate number(s) of the Securities which the Holder shall deliver to be repurchased or, if Certificated Securities have not been issued for such Security, the Repurchase Notice shall comply with the appropriate Depositary procedures for book-entry transfer, (ii) the portion of the principal amount of the Security which the Holder shall deliver to be repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000, and 25 (iii) that such Security shall be repurchased by the Company as of the Repurchase Date pursuant to the terms and conditions specified in Section 5 of the Securities and in this Indenture. The delivery of such Security (together with all necessary endorsements or notifications of book entry transfer) to the Paying Agent at any time after delivery of the Repurchase Notice at the offices of the Paying Agent shall be a condition to receipt by the Holder of the Repurchase Price therefor; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 3.07 only if the Security (together with all necessary endorsements or notifications of book entry transfer) so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Repurchase Notice. The Company shall repurchase from the Holder thereof, pursuant to and subject to the terms and conditions of this Section 3.07, a portion of a Security, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the repurchase of such portion of such Security. Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.07 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Business Day immediately following the Repurchase Date and the time of delivery of the Security (together with all necessary endorsements or notifications of book-entry transfer). Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by this Section 3.07 shall have the right to withdraw such Repurchase Notice by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.09 at any time prior to the close of business on the second Business Day prior to the Repurchase Date. The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof. Section 3.08 Repurchase of Securities at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs, each Holder shall have the right, at such Holder's option, to require the Company to repurchase for cash all of such Holder's Securities not previously called for redemption by the Company, or any portion thereof that is equal to or an integral multiple of $1,000 principal amount, at a repurchase price equal to 100% of the principal amount of those Securities, plus accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on those Securities (the "Fundamental Change Repurchase Price") to, but not including, the date that is specified by the Company and is not later than 20 Business Days following the date of the notice of a Fundamental Change mailed by the Company pursuant to Section 3.08(b) (the "Fundamental Change Repurchase Date"), subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.08(c); provided that if the Fundamental Change Repurchase Date is on a date that is after an Interest Record Date and on or prior to the corresponding Interest Payment Date, the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Securities repurchased but shall not include accrued and unpaid Interest and accrued and unpaid Additional Interest, if any. Instead, the Company shall pay such Interest and Additional Interest, if any, on the Interest Payment Date to the Holder of Record on the corresponding Interest Record Date. (b) No later than 15 days after the occurrence of a Fundamental Change, the Company shall deliver a Company Notice of the Fundamental Change (substantially in the form of Exhibit E) to the Trustee and to each Holder. The Company Notice shall include a form of Fundamental Change Repurchase Notice to be completed by the Holder and shall state: 26 (i) briefly, the events causing a Fundamental Change and the date of such Fundamental Change; (ii) the date by which the Fundamental Change Repurchase Notice pursuant to this Section 3.08 must be delivered to the Paying Agent in order for a Holder to exercise the repurchase rights; (iii) the Fundamental Change Repurchase Date; (iv) the Fundamental Change Repurchase Price; (v) the name and address of the Paying Agent and the Conversion Agent; (vi) the Conversion Rate; (vii) that the Securities as to which a Fundamental Change Repurchase Notice has been given may be converted if they are otherwise convertible pursuant to Article 10 hereof only if the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; (viii) that the Securities must be surrendered to the Paying Agent (by effecting book entry transfer of the Securities or delivering Certificated Securities, together with necessary endorsements, as the case may be) to collect payment; (ix) that the Fundamental Change Repurchase Price for any Security as to which a Fundamental Change Repurchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Business Day immediately following the Fundamental Change Repurchase Date and the time of surrender of such Security as described in clause (viii); (x) briefly, the procedures the Holder must follow to exercise rights under this Section 3.08; (xi) briefly, the conversion rights, if any, that exist on the Securities at the date of the Company Notice and as a result of such Fundamental Change; (xii) the procedures for withdrawing a Fundamental Change Repurchase Notice; (xiii) that, unless the Company defaults in making payment of such Fundamental Change Repurchase Price on Securities for which a Fundamental Change Repurchase Notice is submitted, Interest and Additional Interest, if any, on Securities surrendered for purchase by the Company shall cease to accrue from and after the Fundamental Change Repurchase Date; and (xiv) the "CUSIP," "ISIN" or other similar number(s), as the case may be, of the Securities. At the Company's request, the Trustee shall give such Company Notice to each Holder in the Company's name and at the Company's expense; provided, however, that, in all cases, the text of such Company Notice shall be prepared by the Company. (c) A Holder may exercise its rights specified in this Section 3.08 upon delivery of a written notice of repurchase (a "Fundamental Change Repurchase Notice") to the Paying Agent at any time on or prior to the close of business on the second Business Day prior to the Fundamental Change Repurchase Date, stating: 27 (i) If Certificated Securities have been issued, the certificate number(s) of the Securities which the Holder shall deliver to be repurchased or, if Certificated Securities have not been issued, the Fundamental Change Repurchase Notice shall comply with the appropriate Depositary procedures for book-entry transfer; (ii) the portion of the principal amount of the Security which the Holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple of $1,000; and (iii) that such Security shall be repurchased pursuant to the terms and conditions specified in Section 5 of the Securities and in this Indenture. The delivery of such Security (together with all necessary endorsements or notification of book-entry transfer) to the Paying Agent with the Fundamental Change Repurchase Notice at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided, however, that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.08 only if the Security (together with all necessary endorsements or notification of book-entry transfer) so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Fundamental Change Repurchase Notice. The Company shall repurchase from the Holder thereof, pursuant to this Section 3.08, a portion of a Security if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Security also apply to the repurchase of such portion of such Security. Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.08 shall be consummated by the delivery of the Fundamental Change Repurchase Price promptly following the later of the Business Day following the Fundamental Change Repurchase Date or the time of delivery of such Security (together with all necessary endorsements or notifications of book-entry transfer). Notwithstanding the foregoing, Holders shall not have the right to require the Company to repurchase the Securities upon a Fundamental Change as a result of a Change of Control described in clause (4) of the definition thereof if 90% or more of the consideration in the transaction or transactions constituting such Change of Control consists of shares of common stock traded or to be traded immediately following such Change of Control on a U.S. national securities exchange or The New York Stock Exchange, and, as a result of such transaction or transactions, the Securities become convertible into such common stock (and any rights attached thereto). Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.08(c) shall have the right to withdraw such Fundamental Change Repurchase Notice by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.09 at any time prior to the close of business on the second Business Day prior to the Fundamental Change Repurchase Date. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written withdrawal thereof. Section 3.09 Effect of Repurchase Notice or Fundamental Change Repurchase Notice. (a) Upon receipt by the Paying Agent of the Repurchase Notice or Fundamental Change Repurchase Notice specified in Section 3.07 or Section 3.08, as applicable, the Holder of the Security in respect of which such Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, 28 was given shall (unless such Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, is withdrawn as specified in Section 3.09(b)) thereafter be entitled solely to receive the Repurchase Price or Fundamental Change Repurchase Price, as the case may be, with respect to such Security whether or not the Security is, in fact, properly delivered. Such Repurchase Price or Fundamental Change Repurchase Price shall be paid to such Holder, subject to receipt of funds and/or securities by the Paying Agent, promptly following the later of (x) the Business Day following the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, with respect to such Security (provided the conditions in Section 3.07 or Section 3.08, as applicable, have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 3.07 or Section 3.08, as applicable. Securities in respect of which a Repurchase Notice or Fundamental Change Repurchase Notice has been given by the Holder thereof may not be converted pursuant to and to the extent permitted by Article 10 hereof on or after the date of the delivery of such Repurchase Notice or Fundamental Change Repurchase Notice unless such Repurchase Notice or Fundamental Change Repurchase Notice has first been validly withdrawn as specified in Section 3.09(b). (b) A Repurchase Notice or Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with the Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, at any time (i) in the case of the Repurchase Notice, if received by the Paying Agent prior to the close of business on the second Business Day prior to the Repurchase Date or (ii) in the case of the Fundamental Change Repurchase Notice, if received by the Paying Agent prior to the close of business on the second Business Day prior to the Fundamental Change Repurchase Date, as the case may be, specifying: (i) the principal amount, if any, of such Security which remains subject to the original Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, and which has been or shall be delivered for purchase by the Company, (ii) if Certificated Securities have been issued, the certificate number, if any, of the Security in respect of which such notice of withdrawal is being submitted (or, if Certificated Securities have not been issued, that such withdrawal notice shall comply with the appropriate Depositary procedures), and (iii) the principal amount of the Security with respect to which such notice of withdrawal is being submitted. Section 3.10 Deposit of Repurchase Price or Fundamental Change Repurchase Price. Prior to 10:00 a.m. (local time in The City of New York) on the Business Day following the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an amount of cash in immediately available funds sufficient to pay the aggregate Repurchase Price or Fundamental Change Repurchase Price, as the case may be, of all the Securities or portions thereof which are to be purchased as of the Repurchase Date or Fundamental Change Repurchase Date, as the case may be. Section 3.11 Securities Purchased in Part. Any Certificated Security which is to be purchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new 29 Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered which is not purchased. Section 3.12 Covenant to Comply with Securities Laws upon Purchase of Securities. When complying with the provisions of Section 3.07 or Section 3.08 hereof (provided that such offer or purchase constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein, includes any successor provision thereto) under the Exchange Act at the time of such offer or purchase), and subject to any exemptions available under applicable law, the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 (or any successor provision) and any other applicable tender offer rules under the Exchange Act, (ii) file the related Schedule TO (or any successor schedule, form or report) under the Exchange Act, and (iii) otherwise comply with all Federal and state securities laws so as to permit the rights and obligations under Sections 3.07 and 3.08 to be exercised in the time and in the manner specified in Sections 3.07 and 3.08. Section 3.13 Repayment to the Company. The Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed as provided in Section 12 of the Securities, together with interest, if any, thereon (subject to the provisions of Section 7.01(f)), held by them for the payment of the Repurchase Price or Fundamental Change Repurchase Price, as the case may be. ARTICLE 4 COVENANTS Section 4.01 Payment of Securities. The Company shall make all payments in respect of the Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture. Any amounts of cash in immediately available funds or shares of Common Stock to be given to the Trustee or Paying Agent shall be deposited with the Trustee or Paying Agent by 10:00 a.m., New York City time, by the Company. The principal amount of, and Interest and Additional Interest, if any, on the Securities, and the Redemption Price, Repurchase Price and the Fundamental Change Repurchase Price shall be considered paid on the applicable date due if on such date (which, in the case of a Repurchase Price or a Fundamental Change Repurchase Price, shall be on the Business Day immediately following the applicable Repurchase Date or Fundamental Change Repurchase Date, as the case may be) the Trustee or the Paying Agent holds, in accordance with this Indenture, cash or securities, if permitted hereunder, sufficient to pay all such amounts then due. Section 4.02 SEC and Other Reports. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company shall file with the SEC (and make available to the Trustee and Holders of the Securities (without exhibits), without cost to any Holder, within 15 days after the Company files them with the SEC) from and after the Issue Date, (i) within the time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K after the end of each fiscal year, annual reports on Form 10-K, 30 or any successor or comparable form, containing the information required to be contained therein, or required in such successor or comparable form; (ii) within the time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-Q after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form; (iii) within the time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 8-K after the occurrence of an event required to be therein reported, such other reports on Form 8-K, or any successor or comparable form; and (iv) any other information, documents and other reports which the Company would be required to file with the SEC if the Company were subject to Section 13 or 15(d) of the Exchange Act; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Company shall make available such information to prospective purchasers of the Securities, in addition to providing such information to the Trustee and the Holders of the Securities, in each case within 15 days after the time the Company would be required to file such information with the SEC, if the Company were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company shall agree that, for so long as any Securities are outstanding, the Company will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (b) The Company shall hold a quarterly conference call for the Holders of the Securities to discuss the Company's operating results within five Business Days from the date that the Company would otherwise be required to file reports as specified in Section 4.02(a) hereof. (c) Notwithstanding anything herein to the contrary, the Company shall not be deemed to have failed to comply with any of its obligations under this Section 4.02 for purposes of Section 6.01(f) until 15 days after the date any report hereunder is due. Section 4.03 Compliance Certificate. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending December 31, 2007) an Officer's Certificate, stating whether or not to the knowledge of the signer thereof, the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which such Officer may have knowledge and otherwise comply with Section 314(a)(4) of the TIA. The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee, within 5 Business Days of any executive officer of the Company becoming aware of any Default or Event of Default, an Officer's Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. 31 Section 4.04 Further Instruments and Acts. The Company shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture. Section 4.05 Delivery of Certain Information. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any beneficial owner of Securities or holder or beneficial owner of shares of Common Stock issued upon conversion thereof, the Company will promptly furnish or cause to be furnished Rule 144A Information (as defined below), if any, to such Holder or any beneficial owner of Securities or holder or beneficial owner of shares of Common Stock issued upon conversion thereof, or to a prospective purchaser of any such security designated by any such holder, as the case may be, until the second anniversary of the last issuance of the Securities pursuant to the Purchase Agreement, to the extent required to permit compliance by such Holder or holder with Rule 144A under the Securities Act in connection with the resale of any such security. "Rule 144A Information" shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a person is a beneficial owner shall be determined by the Company to the Company's reasonable satisfaction. Section 4.06 Additional Interest Notice. In the event that the Company is required to pay Additional Interest to Holders of Securities pursuant to the Registration Rights Agreement, the Company will provide written notice ("Additional Interest Notice") to the Trustee of its obligation to pay Additional Interest prior to the required payment date for the Additional Interest, and the Additional Interest Notice shall set forth the amount of Additional Interest to be paid by the Company on such payment date. The Trustee shall not at any time be under any duty to any Holder to make any determination with respect to the Additional Interest, or with respect to the nature, extent or calculation of the amount of Additional Interest when made, or with respect to the method employed in such calculation of the Additional Interest Section 4.07 Maintenance of Office or Agency. The Company shall maintain in the United States of America an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer, exchange, purchase, redemption or conversion and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Corporate Trust Office of the Trustee, as listed in Section 13.02, shall initially be such office or agency for all of the aforesaid purposes. The Company shall give prompt written notice to the Trustee of the location, and of any change in the location, of any such office or agency (other than a change in the location of the office of the Trustee). If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 13.02. The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United States of America for such purposes. 32 Section 4.08 No Layering of Indebtedness. The Company shall not incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is contractually subordinate or junior in right of payment to any Senior Debt of the Company and senior in right of payment to the Securities. In addition, no Guarantor shall incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness of such Guarantor that is contractually subordinate or junior in right of payment to any Indebtedness of such Guarantor and senior in right of payment to the Guarantee of such Guarantor of the Securities. For purposes of this Section 4.08, Section 11.01 and Section 12.02, for the avoidance of doubt, no Indebtedness shall be deemed to be subordinated in right of payment to any other Indebtedness solely by virtue of being unsecured or secured by a junior priority lien or by virtue of the fact that the holders of such Indebtedness have entered into intercreditor agreements or other arrangements giving one or more of such holders priority over the other holders in the collateral held by them or by virtue of structural subordination. Section 4.09 Guarantees. (a) If the Company or any of its Subsidiaries acquires or creates another Domestic Subsidiary after the date of this Indenture and such Domestic Subsidiary becomes a guarantor or obligor in respect of other Indebtedness of the Company or any of its Subsidiaries that is incurred, issued or raised in a public or private U.S. capital markets transaction, then the Company will cause that newly acquired or created Domestic Subsidiary to execute a Guarantee pursuant to a supplemental indenture in the form of Exhibit G attached hereto or as otherwise satisfactory to the Trustee and deliver an Opinion of Counsel to the Trustee within 10 Business Days of the date on which it became a guarantor or obligor of such Indebtedness to the effect that such supplemental indenture has been duly authorized, executed and delivered by that Domestic Subsidiary and constitutes a valid and binding agreement of that Domestic Subsidiary, enforceable in accordance with its terms (subject to customary exceptions). (b) The Guarantee of any Domestic Subsidiary that becomes a Guarantor will be released either with the consent of Holders of the Notes in accordance with Section 9.02 hereof or without the consent of Holders of the Notes in accordance with Section 12.07 hereof. The form of notation of Guarantee and the related form of supplemental indenture are attached hereto as Exhibit F and Exhibit G, respectively. ARTICLE 5 SUCCESSOR PERSON Section 5.01 When Company May Merge or Transfer Assets. (a) The Company shall not consolidate with or merge with or into any other Person or convey, transfer, sell, lease or otherwise dispose of all or substantially all of its assets to any Person (other than a Guarantor), unless: (1) Either (A) the Company is the surviving Person in the case of a merger, or (B) the resulting, surviving or transferee Person (the "successor Person") will be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the successor Person (if not the Company) will expressly assume, by indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture; 33 (2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (3) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer, sale or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided relating to such transaction have been satisfied. (b) Each Guarantor will not, and the Company will not permit a Guarantor to, consolidate with or merge with or into any other Person (other than the Company or any Guarantor), unless: (1) Either (A) the Guarantor is the surviving Person in the case of a merger, or (B) the resulting, surviving or transferee Person (the "successor Guarantor Person") will be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the successor Guarantor Person (if not such Guarantor) will expressly assume, by indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of such Guarantor under the Securities and this Indenture; (2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (3) such Guarantor or such successor Guarantor Person shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation or merger and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 5 and that all conditions precedent herein provided relating to such transaction have been satisfied. For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise) of the properties and assets of one or more Subsidiaries (other than to the Company or another Subsidiary), which, if such assets were owned by the Company, would constitute all or substantially all of the properties and assets of the Company and its Subsidiaries, taken as a whole, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The successor Person or successor Guarantor Person, as the case may be, formed by such consolidation or into which the Company or any Guarantor is merged shall succeed to, and be substituted for, and may exercise every right and power of, the Company or such Guarantor, as the case may be, under this Indenture with the same effect as if such successor had been named as the Company or such Guarantor, as the case may be, herein; and thereafter, except in the case of a lease and obligations the Company or such Guarantor, as the case may be, may have under a supplemental indenture, the Company or such Guarantor, as the case may be, shall be discharged from all obligations and covenants under this Indenture and the Securities. Subject to Section 9.06, the Company, such Guarantor, the Trustee and the successor Person or the successor Guarantor Person, as the case may be, shall enter into a supplemental indenture to evidence the succession and substitution of such successor Person or such successor Guarantor Person, as the case may be, and such discharge and release of the Company or such Guarantor, as the case may be. 34 ARTICLE 6 DEFAULTS AND REMEDIES Section 6.01 Events of Default. So long as any Securities are outstanding, each of the following shall be an "Event of Default": (a) following the exercise by the Holder of the right to convert a Security in accordance with Article 10 hereof, the Company fails to comply with its obligations to deliver the cash or shares of Common Stock, if any, required to be delivered as part of the applicable Conversion Settlement Distribution on the applicable Conversion Settlement Date and such failure continues for a period of 5 days or more; (b) the Company defaults in its obligation to provide timely notice of a Fundamental Change to the Trustee and each Holder as required under Section 3.08(b); (c) the Company defaults in its obligation to redeem any Security, or any portion thereof, called for redemption by the Company pursuant to and in accordance with Section 3.01 hereof; (d) the Company defaults in the payment of the principal amount of any Security when due at maturity, redemption, upon repurchase or otherwise (including, without limitation, upon the exercise by a Holder of its right to require the Company to repurchase such Securities pursuant to and in accordance with Section 3.07 or Section 3.08 hereof), whether or not prohibited by Article 11; (e) the Company defaults in the payment of any Interest or Additional Interest, if any, when due and payable, and continuance of such default for a period of 30 days, whether or not prohibited by Article 11; (f) the Company fails to perform or observe any term, covenant or warranty or agreement in the Securities or this Indenture (other than those referred to in clause (a) through clause (e) above) and such failure continues for 60 days after receipt by the Company of a Notice of Default; (g) (A) any default in the payment of the principal, premium, if any, or interest on any Indebtedness shall have occurred under any of the agreements, indentures or instruments under which the Company, any Guarantor or any other Subsidiary then has outstanding Indebtedness in excess of $25.0 million when the same shall become due and payable in full and such default shall have continued after any applicable grace period and shall not have been cured or waived and, if not already matured at its final maturity in accordance with its terms, the holder of such Indebtedness shall have the right to accelerate such Indebtedness or (B) an event of default as defined in any of the agreements, indentures or instruments described in clause (A) above shall have occurred and the Indebtedness thereunder, if not already matured at its final maturity in accordance with its terms, shall have been accelerated; provided that, if any Indebtedness has been properly defeased, any default on such Indebtedness (as described in clause (A) or (B) above) will not constitute a default under this Indenture; (h) one or more judgments, orders or decrees of any court or regulatory or administrative agency for the payment of money in excess of $25.0 million, either individually or in the aggregate, shall be rendered against the Company, any Guarantor or any other Subsidiary or any of their respective properties and shall not be discharged and either (A) any creditor shall have commenced an enforcement proceeding upon such judgment, order or decree or (B) there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal or otherwise, shall not be in effect; 35 (i) the entry by a court having jurisdiction in the premise of (i) a decree or order for relief in respect of the Company or any of its Significant Subsidiaries, in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law (any "Bankruptcy Law") or (ii) a decree or order adjudging the Company or any Significant Subsidiary, a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any Significant Subsidiary, under any applicable Bankruptcy Law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of any of their property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order described in clause (i) or (ii) above is unstayed and in effect for a period of 60 consecutive days; (j) (i) the commencement by the Company or any Significant Subsidiary, of a voluntary case or proceeding under any applicable Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or (ii) the consent by the Company or any Significant Subsidiary, to the entry of a decree or order for relief in respect of the Company or any Significant Subsidiary, in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company or any Significant Subsidiary, or (iii) the filing by the Company or any Significant Subsidiary, of a petition or answer or consent seeking reorganization or relief under any applicable Bankruptcy Law, or (iv) the consent by the Company or any Significant Subsidiary to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of any of their property, or (v) the making by the Company or any Significant Subsidiary, of a general assignment for the benefit of creditors, or the admission by the Company or any Significant Subsidiary, in writing of its inability to pay its debts generally as they become due; and (k) any Guarantee shall for any reason cease to be, or shall for any reason be asserted in writing by any Guarantor or the Company not to be, in full force and effect and enforceable in accordance with its terms, except to the extent contemplated by this Indenture and any such Guarantee, including any release of any Guarantee contemplated by this Indenture. The foregoing shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body. For the avoidance of doubt, clause (f) above shall not constitute an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in aggregate principal amount of the Securities at the time outstanding notify the Company and the Trustee, of such default and the Company does not cure such default (and such default is not waived) within the time specified in clause (f) above after actual receipt of such notice. Any such notice must specify the default, demand that it be remedied and state that such notice is a "Notice of Default." Section 6.02 Acceleration. If an Event of Default (other than an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company) occurs and is continuing (the Event of Default not having been cured or waived), the Trustee by notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Securities at the time outstanding by notice to the Company and the Trustee, may declare the principal amount of the Securities and any accrued and unpaid Interest and any accrued and 36 unpaid Additional Interest, if any, on all the Securities to be immediately due and payable. Upon such a declaration, such accelerated amount shall be immediately due and payable. If an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the Company occurs and is continuing, the principal amount of the Securities and any accrued and unpaid Interest and any accrued and unpaid Additional Interest, if any, on all the Securities shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholders. The Holders of a majority in aggregate principal amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to any other Securityholder) may rescind an acceleration and its consequences, and thereby waive the Events of Default giving rise to such acceleration, if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of the principal amount of the Securities and any accrued and unpaid Interest and any accrued and unpaid Additional Interest, if any, that have become due solely as a result of acceleration. No such rescission shall affect any subsequent Event of Default or impair any right consequent thereto. Section 6.03 Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of the principal amount of the Securities and any accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on the Securities or to enforce the performance of any provision of the Securities or this Indenture. The Trustee may maintain a proceeding even if the Trustee does not possess any of the Securities or does not produce any of the Securities in the proceeding. A delay or omission by the Trustee or any Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of, or acquiescence in, the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative. Section 6.04 Waiver of Past Defaults. The Holders of a majority in aggregate principal amount of the Securities at the time outstanding, by notice to the Trustee (and without notice to any other Securityholder), may waive any existing or past Default and its consequences except (1) an Event of Default described in clauses (a), (b), (c), (d), and (e) of Section 6.01 or (2) an Event of Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Securityholder affected. When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right. This Section 6.04 shall be in lieu of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly excluded from this Indenture, as permitted by the TIA. Section 6.05 Control by Majority. The Holders of a majority in aggregate principal amount of the Securities at the time outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of other Securityholders or would involve the Trustee in personal liability; provided, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction or this Indenture. Prior to taking any action under this Indenture, the Trustee may require indemnity satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action. 37 Section 6.06 Limitation on Suits. A Securityholder may not pursue any remedy with respect to this Indenture or the Securities, except in case of a Default due to the non-payment of the principal amount of the Securities, any accrued and unpaid Interest or any accrued and unpaid Additional Interest, if any, unless: (i) the Holder gives to the Trustee written notice stating that a Default is continuing; (ii) the Holders of at least 25% in aggregate principal amount of the Securities at the time outstanding make a written request to the Trustee to pursue the remedy; (iii) the Trustee does not comply with the request within 60 days after receipt of such notice and offer of security or indemnity; and (iv) the Holders of a majority in aggregate principal amount of the Securities at the time outstanding do not give the Trustee a direction inconsistent with the request during such 60-day period. A Securityholder may not use this Indenture to prejudice the rights of any other Securityholder or to obtain a preference or priority over any other Securityholder. Section 6.07 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of the principal amount of the Securities and any accrued and unpaid Interest and any accrued and unpaid Additional Interest, if any, in respect of the Securities held by such Holder, on or after the respective due dates expressed in the Securities or any Redemption Date, Repurchase Date or Fundamental Change Repurchase Date, and to convert the Securities in accordance with Article 10, or to bring suit for the enforcement of any such payment or the right to convert on or after such respective dates, shall not be impaired or affected adversely without the consent of such Holder. Section 6.08 Collection Suit by Trustee. If an Event of Default described in Section 6.01 clauses (a) through (e) (other than (b)) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount owing with respect to the Securities and the amounts provided for in Section 7.07. Section 6.09 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal amount of the Securities and any accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, in respect of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole principal amount of the Securities and any accrued and unpaid Interest and any accrued and unpaid Additional Interest, if any, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any 38 claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel or any other amounts due the Trustee under Section 7.07) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Company agrees not to object to the Trustee participating as a member of any official committee of creditors of the Company as it deems necessary or advisable. Section 6.10 Priorities. Any money collected by the Trustee pursuant to this Article 6, and, after an Event of Default, any money or other property distributable in respect of the Company's obligations under this Indenture, shall be paid out in the following order: FIRST: to the Trustee (including any predecessor Trustee) for amounts due under Section 7.07; SECOND: to Securityholders for amounts due and unpaid on the Securities for the principal amount of the Securities and any accrued and unpaid Interest and any accrued and unpaid Additional Interest, if any, as the case may be, ratably, without preference or priority of any kind, according to such amounts due and payable on the Securities; and THIRD: the balance, if any, to the Company. The Trustee may fix a record date and payment date for any payment to Securityholders pursuant to this Section 6.10. At least 15 days before such record date, the Trustee shall mail to each Securityholder and the Company a notice that states the record date, the payment date and the amount to be paid. Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant (other than the Trustee) in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate principal amount of the Securities at the time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the TIA. 39 Section 6.12 Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Company from paying all or any portion of the principal amount of the Securities and any accrued and unpaid Interest and any accrued and unpaid Additional Interest, if any, on Securities, as contemplated herein, or which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE 7 TRUSTEE Section 7.01 Duties of Trustee. (a) If an Event of Default has occurred and is continuing, and is actually known to the Trustee, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) Except during the continuance of an Event of Default: (i) the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied duties, covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture, but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein. This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is hereby expressly excluded from this Indenture, as permitted by the TIA. (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) this Section 7.01(c) does not limit the effect of Sections 7.01(b) and 7.01(g); (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05. 40 Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the TIA. (d) Every provision of this Indenture that in any way relates to the Trustee is subject to this Section 7.01. (e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (f) Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be under no liability for interest on any money received by it hereunder unless otherwise agreed in writing with the Company (provided that any interest earned on money held by the Trustee in trust hereunder shall be the property of the Company). (g) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Section 7.02 Rights of Trustee. Subject to the provisions of Section 7.01: (a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer's Certificate or an Opinion of Counsel; (c) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (d) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith which it believes to be authorized or within its rights or powers conferred under this Indenture; (e) the Trustee may consult with counsel selected by it and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (f) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of 41 this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; (g) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (h) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to, during regular business hours, examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; (i) Except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article 4. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or Event of Default occurring pursuant to Sections 6.01(a), 6.01(c), 6.01(d) or 6.01(e) or (ii) any Default or Event of Default of which the Trustee shall have received written notification or obtained actual knowledge; (j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; (k) the Trustee may request that the Company deliver an Officer's Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer's Certificate may be signed by any person authorized to sign an Officer's Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; (l) the permissive rights of the Trustee to take certain actions under this Indenture shall not be construed as a duty unless so specified herein; (m) delivery of reports, information and documents to the Trustee under Section 4.02 is for informational purposes only and the Trustee's receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer's Certificates); (n) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and (o) the Trustee shall not be responsible for any costs, expenses, damages or other liabilities arising (directly or indirectly) as a result of (i) any filing of a claim or proof of debt by holders of Senior Debt (or their Representative) or (ii) any right of holders of Senior Debt (or their Representative) to file any such claim or proof of debt, in any such case in accordance with the second paragraph of Section 11.04. 42 Section 7.03 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent or co-registrar may do the same with like rights. However, the Trustee must comply with Section 7.10 and Section 7.11. Section 7.04 Trustee's Disclaimer. The Trustee makes no representation as to, and shall have no responsibility for, the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company's use or application by the Company of the Securities or of the proceeds from the Securities, it shall not be responsible for the correctness of any statement in the registration statement for the Securities under the Securities Act or in any offering document for the Securities, the Indenture or the Securities (other than its certificate of authentication), or the determination as to which beneficial owners are entitled to receive any notices hereunder. Section 7.05 Notice of Defaults. If a Default or Event of Default occurs and if it is known to the Trustee, the Trustee shall give to each Securityholder notice of the Default or Event of Default (and, to the extent applicable, notice if any payment is due with respect to Section 6.03) within 90 days after it occurs or, if later, within 15 days after it is known to the Trustee, unless such Default or Event of Default shall have been cured or waived before the giving of such notice. Notwithstanding the preceding sentence, except in the case of a Default or Event of Default described in clauses (d) and (e) of Section 6.01, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interest of the Securityholders. The preceding sentence shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is hereby expressly excluded from this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have knowledge of a Default or Event of Default unless a Responsible Officer of the Trustee has received written notice of such Default or Event of Default, which notice specifically references this Indenture and the Securities. Section 7.06 Reports by Trustee to Holders. Within 60 days after each December 31 beginning with December 31, 2007, the Trustee shall mail to each Securityholder a brief report dated as of such December 31 that complies with TIA Section 313(a), if required by such Section 313(a). The Trustee also shall comply with TIA Section 313(b). Any reports required by this Section 7.06 shall be transmitted by mail to Securityholders pursuant to TIA Section 313(c). A copy of each report at the time of its mailing to Securityholders shall be filed with the SEC and each securities exchange, if any, on which the Securities are listed. The Company agrees to notify the Trustee promptly whenever the Securities become listed on any securities exchange and of any delisting thereof. Section 7.07 Compensation and Indemnity. The Company agrees: (a) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which 43 compensation shall not be limited (to the extent permitted by law) by any provision of law in regard to the compensation of a trustee of an express trust); (b) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses, advances and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own negligence, willful misconduct or bad faith; and (c) to indemnify the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any loss, damage, claim, liability, cost or expense (including reasonable attorney's fees and expenses, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee)) incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder. To secure the Company's payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay the principal amount of, or the Redemption Price, Repurchase Price, Fundamental Change Repurchase Price, Interest or Additional Interest, if any, as the case may be, on particular Securities. The Company's payment, reimbursement and indemnity obligations pursuant to this Section 7.07 shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the Trustee and the termination of this Indenture for any reason. In addition to and without prejudice to its rights hereunder, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(i) or Section 6.01(j), the expenses, including the reasonable charges and expenses of its counsel and the compensation for services payable pursuant to Section 7.07(a), are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or similar laws. For the purposes of this Section 7.07, the "Trustee" shall include any predecessor Trustee; provided, however, that except as may be otherwise agreed among the parties, the negligence, willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder. Section 7.08 Replacement of Trustee. The Trustee may resign at any time by so notifying the Company; provided, however, no such resignation shall be effective until a successor Trustee has accepted its appointment pursuant to this Section 7.08. The Holders of a majority in aggregate principal amount of the Securities at the time outstanding may remove the Trustee by so notifying the Trustee and the Company in writing. The Company shall remove the Trustee if: (i) the Trustee fails to comply with Section 7.10; (ii) the Trustee is adjudged bankrupt or insolvent; (iii) a receiver or public officer takes charge of the Trustee or its property; or (iv) the Trustee otherwise becomes incapable of acting. 44 If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint, by resolution of its Board of Directors, a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Securityholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07. If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate principal amount of the Securities at the time outstanding may petition any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee. If the Trustee fails to comply with Section 7.10, any Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. So long as no Default or Event of Default shall have occurred and be continuing, if the Company shall have delivered to the Trustee (i) a Board Resolution appointing a successor Trustee, effective as of a date at least 30 days after delivery of such Resolution to the Trustee, and (ii) an instrument of acceptance of such appointment, effective as of such date, by such successor Trustee in accordance with this Indenture, the Trustee shall be deemed to have resigned as contemplated in this Section 7.08, the successor Trustee shall be deemed to have been accepted as contemplated in this Indenture, all as of such date, and all other provisions of this Indenture shall be applicable to such resignation, appointment and acceptance. Section 7.09 Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Trustee, subject to Sections 7.10 and 7.11. Section 7.10 Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or any parent holding company) shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. Nothing herein contained shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of TIA Section 310(b). Section 7.11 Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. 45 ARTICLE 8 DISCHARGE OF INDENTURE Section 8.01 Discharge of Liability on Securities. When (i) the Company causes to be delivered to the Trustee all outstanding Securities (other than Securities replaced or repaid pursuant to Section 2.07) for cancellation or (ii) all outstanding Securities have become due and payable and the Company deposits with the Trustee cash sufficient to pay all amounts due and owing on all outstanding Securities (other than Securities replaced pursuant to Section 2.07), and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 7.07, cease to be of further effect. The Trustee shall join in the execution of a document prepared by the Company acknowledging satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officer's Certificate and Opinion of Counsel and at the cost and expense of the Company. Section 8.02 Repayment to the Company. The Trustee and the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, subject to applicable abandoned property law. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person and the Trustee and the Paying Agent shall have no further liability to the Securityholders with respect to such money or securities for that period commencing after the return thereof. Section 8.03 Application of Trust Money. The Trustee shall hold in trust all money and other consideration deposited with it pursuant to Section 8.01 and shall apply such deposited money and other consideration through the Paying Agent and in accordance with this Indenture to the payment of amounts due on the Securities. Money and other consideration so held in trust is subject to the Trustee's rights under Section 7.07. ARTICLE 9 AMENDMENTS Section 9.01 Without Consent of Holders. The Company, the Guarantors and the Trustee may modify or amend this Indenture, the Securities or the Guarantees without the consent of any Securityholder to: (a) add guarantees with respect to the Securities or secure the Securities; (b) remove any guarantee added to the Securities pursuant to clause (a) above, unless such guarantee is required pursuant to Section 5.01(a); (c) conform any non-conforming language or defined terms in the text of this Indenture or the Securities to any provision of the "Description of the Debentures" section of the Offering Memorandum so that such provision in the "Description of the Debentures" section reflects a verbatim recitation of a provision of this Indenture or the Securities; 46 (d) add to the covenants or Events of Default of the Company for the benefit of the Holders of Securities; (e) surrender any right or power herein conferred upon the Company; (f) provide for conversion rights of Holders of Securities if any reclassification or change of the Common Stock or any consolidation, merger or sale of all or substantially all of the Company's assets occurs; (g) evidence the assumption by a successor Person (and the public acquirer, if applicable) of the Company's obligations to the Holders of Securities in the case of a merger, consolidation, conveyance, transfer, sale, lease or other disposition pursuant to Article 5 hereof (or Section 10.01(d) in the case of a public acquirer) and to evidence the assumption by a successor Guarantor Person of a Guarantor's obligations under its Guarantee in the case of a merger or consolidation pursuant to Article 5 hereof; (h) provide for uncertificated Securities in addition to or in place of Certificated Securities; provided, however, that uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code or in a manner such that uncertificated Securities are described in Section 163(f)(2)(B) of the Code; (i) change the Conversion Rate in accordance with this Indenture; provided, however, that any increase in the Conversion Rate other than pursuant to Article 10 shall not adversely affect the interests of the Holders of Securities (after taking into account U.S. federal income tax and other consequences of such increase); (j) comply with the requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA; (k) cure any ambiguity or to correct or supplement any provision herein which may be a mistake or inconsistent with any other provision herein or which is otherwise defective; (l) make other changes to the Indenture or forms or terms of the Securities; provided that no such change individually or in the aggregate with all other such changes have or will have a material adverse effect on the interests of the Holders of Securities; (m) establish the form of Securities if issued in definitive form (substantially in the form of Exhibit B) or issue any Securities pursuant to the over-allotment option pursuant to the Purchase Agreement; (n) evidence and provide for the acceptance of the appointment under this Indenture of a successor Trustee in accordance with the terms of this Indenture; or (o) irrevocably elect to pay the principal of the Securities in cash or to pay all of the Conversion Obligation in shares of Common Stock in accordance with this Indenture. Section 9.02 With Consent of Holders. Except as provided below in this Section 9.02 and in Section 9.01, this Indenture, the Securities or the Guarantees may be amended, modified or supplemented, and noncompliance in any particular instance with any provision of this Indenture, the Securities or the Guarantees may be waived, in each 47 case with the written consent of the Holders of at least a majority of the principal amount of the Securities at the time outstanding. Without the written consent or the affirmative vote of each Holder of Securities, an amendment, supplement or waiver under this Section 9.02 may not: (a) reduce the principal amount of or change the maturity of any Security, or the payment date of any installment of Interest or Additional Interest payable on any Security; (b) reduce the Redemption Price, Repurchase Price or Fundamental Change Repurchase Price of, any Security or change the time at which or circumstances under which the Securities may be redeemed or repurchased; (c) change the currency of payment of such Securities or Interest, Additional Interest, Redemption Price, Fundamental Change Repurchase Price or Repurchase Price thereon; (d) alter the manner of calculation or rate of accrual of Interest or Additional Interest or extend the time for payment of any such amount; (e) impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to, or conversion of, any Security; (f) adversely affect the repurchase option of the Holders of the Securities as provided in Article 3 or impair the right of the Holders of the Securities to convert any Security as provided in Article 10 or reduce the number of Common Shares or any other property receivable upon conversion, except as otherwise permitted pursuant to Article 5 or Section 10.05 hereof; (g) modify the redemption provisions of Article 3 in a manner adverse to the Holders of the Securities; (h) change the Company's obligation to maintain an office or agency in the places and for the purposes specified in this Indenture; (i) modify any of the provisions of this Section 9.02, or reduce the percentage of the aggregate principal amount of outstanding Securities required to amend, modify or supplement the Indenture or the Securities or waive an Event of Default, except to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Security affected thereby; or (j) modify any of the provisions of this Indenture which relate to subordination under Article 11 if such modification would adversely affect the rights of Holders of Securities. It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof. After an amendment under this Section 9.02 becomes effective, the Company shall deliver to each Holder a notice briefly describing the amendment. 48 Section 9.03 Compliance With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article 9 shall comply with the TIA as then in effect. Section 9.04 Revocation and Effect of Consents, Waivers and Actions. Until an amendment, waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Security hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same obligation as the consenting Holder's Security, even if notation of the consent, waiver or action is not made on the Security. However, any such Holder or subsequent Holder may revoke the consent, waiver or action as to such Holder's Security or portion of the Security if the Trustee receives the notice of revocation before the date the amendment, waiver or action becomes effective. After an amendment, waiver or action becomes effective, it shall bind every Securityholder. Section 9.05 Notice of Amendments, Notation on or Exchange of Securities. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 9 may, and shall if required by the Company, bear a notation in form approved by the Company as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for outstanding Securities. Section 9.06 Trustee to Sign Supplemental Indentures. The Trustee shall sign any supplemental indenture authorized pursuant to this Article 9 if the amendment contained therein does not affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign such supplemental indenture. In signing such supplemental indenture the Trustee shall receive, and (subject to the provisions of Section 7.01) shall be fully protected in relying upon, an Officer's Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture. Section 9.07 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article 9, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. ARTICLE 10 CONVERSIONS Section 10.01 Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 10, a Holder of a Security shall have the right, at such Holder's option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Security prior to the close of business on the Business Day immediately preceding Stated Maturity into cash, shares of Common Stock, 49 or a combination of cash and shares of Common Stock, as determined at the Company's discretion, at the Conversion Rate (the "Conversion Obligation") in effect on the date of conversion only as follows: (i) during any fiscal quarter of the Company (a "Fiscal Quarter") commencing after the fiscal quarter ending March 31, 2007 (and only during such Fiscal Quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding Fiscal Quarter is more than 130% of the Conversion Price in effect on such last Trading Day; (ii) during the five Business Day period immediately following any five consecutive Trading Day period (the "Measurement Period") in which the Trading Price per $1,000 original principal amount of the Securities for each day of such Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each such date. The Conversion Agent will, on the Company's behalf, determine if the Securities are convertible as a result of the Trading Price of the Securities and notify the Company and the Trustee; provided that the Conversion Agent shall have no obligation to determine the Trading Price of the Securities unless the Company has requested such determination in writing and the Company shall have no obligation to make such request unless requested to do so by a Holder of the Securities. Upon making any such request, any such requesting Holder shall provide reasonable evidence that (A) such requesting Holder is a Holder of the Securities as of the date of such notice, and (B) the Trading Price per $1,000 principal amount of Securities would be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. At such time, the Company shall instruct the Conversion Agent to determine the Trading Price of the Securities beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 original principal amount of the Securities is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate; (iii) at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date, if the Company has called the Securities for redemption pursuant to Article 3 hereof, even if the Securities are not otherwise convertible at that time; (iv) any time on or after November 1, 2026 and prior to the close of business on the Stated Maturity; (v) as provided in clause (b) of this Section 10.01. The Company or, at its option, the Conversion Agent on behalf of the Company, shall determine on a daily basis during the time periods specified in Section 10.01(a)(i) or, following a request by a Holder of Securities in accordance with the procedures specified in Section 10.01(a)(ii), whether the Securities shall be convertible as a result of the occurrence of an event specified in such Sections and, if the Securities shall be so convertible, the Company or the Conversion Agent, as applicable, shall promptly deliver to the Trustee and Conversion Agent or the Company, as applicable written notice thereof. Whenever the Securities shall become convertible pursuant to this Section 10.01 (as determined in accordance with this Section 10.01), the Company or, at the Company's request, the Trustee in the name and at the expense of the Company, shall promptly notify the Holders (with a copy to the Trustee and Conversion Agent) of the event triggering such convertibility in the manner provided in Section 13.02, and the Company shall also promptly disseminate a press release through Dow Jones & Company, Inc. or Bloomberg Business News and publish such information on the Company's Website or through another public medium the Company may use at that time. Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. (b) In the event that: 50 (1) (A) the Company distributes to all or substantially all holders of Common Stock rights or warrants entitling them to purchase, for a period expiring within 60 days after the date of such distribution, Common Stock at less than the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the announcement date for such distribution; or (B) the Company distributes to all or substantially all holders of Common Stock assets (including cash), debt securities or rights or warrants to purchase the Company's securities, which distribution has a per share value as determined by the Board of Directors exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the announcement date of such distribution, then, in either case, the Securities may be surrendered for conversion at any time on and after the date that the Company gives notice to the Trustee and the Holders of such distribution, which shall be not less than 20 Business Days prior to the Ex-Dividend Date for such distribution, until the earlier of the close of business on the Business Day immediately preceding the Ex-Dividend Date or the date the Company announces that such distribution shall not take place, even if the Securities are not otherwise convertible at such time; provided that no Holder of a Security shall have the right to convert if the Holder may otherwise participate in such distribution without conversion; or (2) a Fundamental Change occurs, then the Securities may be surrendered for conversion at any time from and after the date which is 15 days prior to the anticipated effective date of such transaction until and including the date which is 15 days after the actual effective date of such transaction (or, if such transaction also constitutes a Change of Control pursuant to which Holders have a right to require the Company to repurchase the Securities pursuant to Section 3.08, until the applicable Fundamental Change Repurchase Date). The Company shall notify the Trustee and Holders at the time the Company publicly announces the Change of Control transaction giving rise to the above conversion right (but in no event less than 15 days prior to the anticipated effective date of such transaction). If the Company engages in any reclassification of the Common Stock (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value) or is party to a consolidation, merger, binding share exchange or transfer of all or substantially all of its assets pursuant to which Holders of Common Stock would be entitled to receive cash, securities or other property, then at the effective time of such transaction, to the extent that it constitutes a Change of Control as described in this paragraph above as giving rise to a conversion right, the Conversion Obligation and the Conversion Settlement Distribution shall be based on the applicable Conversion Rate and the kind and amount of cash, securities or other property that a holder of one share of the Common Stock would have received in such transaction as determined pursuant to Section 10.05(b) (such property, collectively, the "Exchange Property"). In addition, if a Holder converts Securities following the effective time of any such transaction, any amounts of the Conversion Settlement Distribution to be settled in shares of Common Stock shall be paid in such Exchange Property rather than shares of Common Stock. If the transaction also constitutes a Fundamental Change, (A) a Holder can require the Company to repurchase all or a portion of its Securities pursuant to Section 3.08 or, (B) if such Holder elects, instead, to convert all or a portion of its Securities, such Holder shall receive Additional Shares upon conversion pursuant to Section 10.01(c), in each case, subject to the terms and conditions set forth in each such Section. (c) If and only to the extent a Holder timely elects to convert Securities during the period specified in Section 10.01(b)(2) above on or prior to February 1, 2017, and 10% or more of the consideration for the Common Stock in such Change of Control transaction consists of consideration other than common stock traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or The New York Stock Exchange, the Conversion Rate shall be increased by an additional number of shares of Common Stock (the "Additional Shares") as described 51 below; provided that if the Stock Price paid in connection with such transaction is greater than $100.00 or less than $20.24 (subject in each case to adjustment as described below), no Additional Shares shall be added to the Conversion Rate. Notwithstanding this Section 10.01(c), if the Company elects to adjust the Conversion Rate pursuant to Section 10.01(d), the provisions of Section 10.01(d) shall apply in lieu of the provisions of this Section 10.01(c). The Company shall notify the Trustee and Holders, at least 15 days prior to the anticipated effective date of such transaction causing any increase of the Conversion Rate pursuant to this Section 10.01(c), whether the Company elects to increase the Conversion Rate as described above or to adjust the Conversion Rate pursuant to Section 10.01(d). The number of Additional Shares to be added to the Conversion Rate as described in the immediately preceding paragraph shall be determined by reference to the table attached as Schedule I hereto, based on the effective date of such Change of Control transaction and the Stock Price paid in connection with such transaction; provided that if the Stock Price is between two Stock Price amounts in the table or such effective date is between two effective dates in the table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two dates, as applicable, based on a 365-day year. The "effective date" with respect to a Change of Control transaction means the date that a Change of Control becomes effective. With respect to any Securities tendered for conversion to which Additional Shares apply, any shares of Common Stock to be delivered upon conversion of such Securities pursuant to Section 10.02 shall be delivered to Holders who elect to convert their Securities on the later of (1) the fifth Business Day following the effective date and (2) the third Business Day following the final day of the Cash Settlement Averaging Period. The Stock Prices set forth in the first row of the table in Schedule I hereto shall be adjusted as of any date on which the Conversion Rate of the Securities is adjusted pursuant to Section 10.04. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares shall be adjusted in the same manner as the Conversion Rate as set forth in Section 10.04. Notwithstanding the foregoing, in no event shall the total number of shares of Common Stock issuable upon conversion of the Securities exceed 49.4071 per $1,000 principal amount of Securities, subject to adjustments in the same manner as the Conversion Rate as set forth in Section 10.04. (d) Notwithstanding the provisions of Section 10.01(c), in the case of a Change of Control that would lead to the issuance of Additional Shares as set forth in clause (c) above that is also a Public Acquirer Change of Control, the Company may, at its option and in lieu of increasing the Conversion Rate by Additional Shares as described in Section 10.01(c), elect to adjust the Conversion Rate and the related Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, Holders of Securities shall be entitled to convert their Securities (subject to the satisfaction of the conditions to conversion set forth in Sections 10.01(a) and 10.03) into Public Acquirer Common Stock. The Conversion Rate following the effective date of such transaction will be a number of shares of Public Acquirer Common Stock equal to the product obtained by multiplying the Conversion Rate in effect immediately before the Public Acquirer Change of Control and the average of the quotients obtained by dividing: 52 (i) the Acquisition Value of the Company's Common Stock by (ii) the Last Reported Sale Price of the Public Acquirer Common Stock for each such Trading Day in the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the effective date of such Public Acquirer Change of Control (the "Valuation Period"). The "Acquisition Value" of the Common Stock means, for each Trading Day in the Valuation Period, the value of the consideration paid per share of Common Stock in connection with such Public Acquirer Change of Control, as follows: (i) For any cash, 100% of the face amount of such cash; (ii) for any Public Acquirer Common Stock, 100% of the Last Reported Sale Price of such Public Acquirer Common Stock on such trading day; and (iii) for any other securities, assets or property, 102% of the fair market value of such security, asset or property on such Trading Day, as determined by three independent nationally recognized investment banks selected by the Company for this purpose (or if prices are not available from three such firms, from two such firms or, if prices are not available from two such firms, from one such firm). "Public Acquirer Change of Control" means an event constituting a corporate transaction that would otherwise obligate the Company to increase the Conversion Rate as described in Section 10.01(c) and the acquirer, the Person formed by or surviving the merger or consolidation or any entity that is direct or indirect "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of such Person's or acquirer's Voting Stock has a class of common stock traded on a national securities exchange or quoted on The New York Stock Exchange or which shall be so traded or quoted when issued or exchanged in connection with such Change of Control (the "Public Acquirer Common Stock"); provided, that if there is more than one of such entity, the relevant entity shall be such entity with the most direct beneficial ownership to such acquirer's or Person's capital stock. Upon a Public Acquirer Change of Control, if the Company so elects, Holders may convert their Securities (subject to the satisfaction of the conditions to conversion set forth in Section 10.01(a)) at the adjusted Conversion Rate described above but shall not be entitled to the increased Conversion Rate described in Section 10.01(c). The Company shall notify the Trustee and Holders of its election in its written notice to Holders pursuant to Section 10.01(b)(2) above. Holders may convert their Securities upon a Public Acquirer Change of Control during the period specified in Section 10.01(b)(2). In addition, Holders can also, subject to certain conditions, require the Company to repurchase all or a portion of their Securities as described in Section 3.08. After any adjustment of the Conversion Rate in connection with a Public Acquirer Change of Control, the Conversion Rate shall be subject to further similar adjustments in the event that any of the events described in Section 10.04 occur thereafter. The Company may only make such election if such public acquirer is a corporation organized under the laws of the United States, any State thereof or the District Columbia and if the Company and such public acquirer executes a supplemental indenture whereby the public acquirer agrees to comply with the obligations of the Company under the Securities and the Indenture applicable to such public acquirer or any securities thereof that may be issuable upon conversion of the Securities. 53 Section 10.02 Conversion Procedure; Conversion Rate; Fractional Shares. Subject to Section 10.01 and the Company's rights under Section 10.03, each Security shall be convertible at the office of the Conversion Agent into a combination of cash and fully paid and nonassessable shares (calculated to the nearest 1/100th of a share) of Common Stock, if any, at a rate (the "Conversion Rate") equal to, initially, 40.3323 shares of Common Stock for each $1,000 principal amount of Securities. The Conversion Rate shall be adjusted in certain instances as provided in Section 10.04 hereof, but shall not be adjusted for any accrued and unpaid Interest or Additional Interest, if any, unless such Conversion Date occurs between an Interest Record Date and the Interest Payment Date to which that Interest Record Date relates. Upon conversion, no payment shall be made by the Company with respect to any accrued and unpaid Interest, including Additional Interest, if any. Instead, such amount shall be deemed paid by the applicable Conversion Settlement Distribution delivered upon conversion of any Security. In addition, no payment or adjustment shall be made in respect of dividends on the Common Stock with a record date prior to the Conversion Date. The Company shall not issue any fraction of a share of Common Stock in connection with any conversion of Securities, but instead shall, subject to Section 10.03 hereof, make a cash payment (calculated to the nearest cent) equal to such fraction multiplied by the Last Reported Sale Price of the Common Stock on the Trading Day prior to the Conversion Date. (a) Before any Holder of a Security shall be entitled to convert the same into a combination of cash and Common Stock, if any, such Holder shall (1) in the case of Global Securities, comply with the procedures of the Depositary in effect at that time for converting a beneficial interest in a Global Security, and in the case of Certificated Securities, surrender such Securities, duly endorsed to the Company or in blank, at the office of the Conversion Agent, and (2) give written notice to the Conversion Agent in the form on the reverse of such Certificated Security (the "Conversion Notice") at said office or place that such Holder elects to convert the same and shall state in writing therein the principal amount of Securities to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for Common Stock included in the Conversion Settlement Distribution, if any, to be registered. Before any such conversion, a Holder also shall pay all taxes or duties, if any, as provided in Section 10.06 and any amount payable pursuant to Section 10.02(f). If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock, if any, that shall be deliverable upon conversion as part of the Conversion Settlement Distribution shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted thereby) so surrendered. (b) A Security shall be deemed to have been converted as of the close of business on the date (the "Conversion Date") that the Holder has complied with Section 10.02(a). (c) The Company shall, on the Conversion Settlement Date, (i) pay the cash component (including cash in lieu of any fraction of a share to which such Holder would otherwise be entitled) of the Conversion Obligation determined pursuant to Section 10.03 to the Holder of a Security surrendered for conversion, or such Holder's nominee or nominees or, and (ii) issue, or cause to be issued, and deliver to the Conversion Agent or to such Holder, or such Holder's nominee or nominees, certificates for the number of full shares of Common Stock, if any, or make a book-entry transfer through DTC with respect to uncertficated Shares, if applicable, to which such Holder shall be entitled as part of such Conversion Obligation. The Company shall not be required to deliver certificates for shares of Common Stock while the stock transfer books for such stock or the security register are duly closed for any purpose, but certificates for shares of Common Stock shall be issued and delivered as soon as practicable after the 54 opening of such books or security register, and the Person or Persons entitled to receive the Common Stock as part of the applicable Conversion Settlement Distribution upon such conversion shall be treated for all purposes as the record holder or holders of such Common Stock, as of the close of business on the applicable Conversion Settlement Date. (d) In case any Security shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Security so surrendered, without charge to such Holder (subject to the provisions of Section 10.06 hereof), a new Security or Securities in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Securities. (e) By delivering the combination of cash and shares of Common Stock, if any, together with a cash payment in lieu of any fractional shares to the Conversion Agent or to the Holder or such Holder's nominee or nominees, the Company shall have satisfied in full its Conversion Obligation with respect to such Security, and upon such delivery, accrued and unpaid Interest, if any, and Additional Interest, if any, with respect to such Security shall be deemed to be paid in full rather than canceled, extinguished or forfeited, and such amounts shall no longer accrue. (f) If a Securityholder delivers a Conversion Notice after the Interest Record Date for a payment of Interest (including Additional Interest, if any) but prior to the corresponding Interest Payment Date, such Securityholder must pay to the Company, at the time such Securityholder surrenders Securities for conversion, an amount equal to the Interest (including Additional Interest, if any), that has accrued and shall be paid on the related Interest Payment Date. The preceding sentence shall not apply if (1) the Company has specified a Redemption Date that is after an Interest Record Date but on or prior to the corresponding Interest Payment Date, (2) the Company has specified a Fundamental Change Repurchase Date during such period referred to in clause (1) of this paragraph or (3) to the extent of overdue Interest (including Additional Interest, if any), if any overdue Interest exists at the time of conversion with respect to the Securities converted. Section 10.03 Payment Upon Conversion. (a) In the event that the Company receives a Conversion Notice on or prior to the day that is 20 days prior to either Stated Maturity or, with respect to Securities being redeemed, the applicable Redemption Date (the "Final Notice Date"), the following procedures will apply: If the Company chooses to satisfy all or any portion of its Conversion Obligation in cash, the Company will notify such Holder through the Trustee of the dollar amount to be satisfied in cash (which must be expressed either as 100% of the Conversion Obligation or as a fixed dollar amount) at any time on or before the date that is two Business Days following the Company's receipt of the Conversion Notice as specified in Section 10.02 (such period, the "Cash Settlement Notice Period"). If the Company timely elects to pay cash for any portion of the Common Stock otherwise issuable to such Holder, the Conversion Notice may be retracted at any time during the two Business Day period beginning on the day after the final day of the Cash Settlement Notice Period (the "Conversion Retraction Period"); no such retraction can be made (and a Conversion Notice shall be irrevocable) if the Company does not elect to deliver cash in lieu of shares of Common Stock (other than cash in lieu of fractional shares). If the Conversion Notice is not retracted within the Conversion Retraction Period, then settlement of the Conversion Obligation (in cash and/or shares of Common Stock) (the "Conversion Settlement Distribution") (other than with respect to any Additional Shares, for which settlement shall occur in the time periods specified in Section 10.01(c)) will occur on the third Business Day following the final day of the 20 Trading Day period beginning on the Trading Day after the final day of the Conversion Retraction 55 Period (the "Cash Settlement Averaging Period"). The Conversion Settlement Distribution will be computed as follows: (i) If the Company elects to satisfy the entire Conversion Obligation in shares of Common Stock, the Company shall deliver to Holders surrendering Securities for conversion a number of shares of Common Stock equal to (1) the aggregate principal amount of Securities to be converted divided by 1,000, multiplied by (2) the sum of the applicable Conversion Rate and the applicable number of Additional Shares issuable upon conversion of $1,000 principal amount of Securities, if any. In addition, the Company will pay cash for all fractional shares of Common Stock as set forth in Section 10.02(c). (ii) If the Company elects to satisfy the entire Conversion Obligation in cash, the Company will deliver to Holders surrendering Securities for conversion, for each $1,000 principal amount of Securities, cash in an amount equal to the product of: (1) a number equal to (x) the aggregate principal amount of Securities to be converted divided by 1,000 multiplied by (y) the number of shares of Common Stock calculated pursuant to subclause (2) of clause (i) of this Section 10.03(a), and (2) the average of the Closing Prices of the Common Stock during each Trading Day during the Cash Settlement Averaging Period. (iii) If the Company elects to satisfy a fixed portion (other than 100%) of the Conversion Obligation in cash, the Company will deliver to Holders surrendering Securities for conversion, for each $1,000 principal amount of Securities, such cash amount (the "Cash Amount") and a number of shares of Common Stock equal to the excess, if any, of the number of shares of Common Stock calculated pursuant to subclause (2) of clause (i) of this Section 10.03(a) over the number of shares of Common Stock equal to the sum, for each day of the Cash Settlement Averaging Period, of (x) 5% of the Cash Amount (other than cash for fractional shares of Common Stock), divided by (y) the Closing Price of the Common Stock on such day. In addition, the Company will pay cash for all fractional shares of Common Stock as set forth in Section 10.02(c). (b) (i) In the event that the Company receives a Conversion Notice after the Final Notice Date, if the Company chooses to satisfy all or any portion of the Conversion Obligation in cash, the Company shall send, on or prior to the Final Notice Date, a single notice to the Trustee of the dollar amount to be satisfied in cash (which must be expressed either as 100% of the Conversion Obligation or as a fixed dollar amount). If the Company delivers a single notice to the Trustee, the Company will not send individual notices of its election to satisfy all or any portion of the Conversion Obligation in cash. The Conversion Settlement Distribution will be computed in the same manner as set forth under Section 10.03(a) above except that the "Cash Settlement Averaging Period" shall be the 20 Trading Day period beginning on the Trading Day after the receipt of the Conversion Notice (or, in the event the Company receives the Conversion Notice on the Business Day prior to the Stated Maturity, the 20 Trading Day period beginning on the Trading Day after the Stated Maturity). Settlement of the Conversion Obligation pursuant to this Section 10.03(b)(i) (in cash and/or shares of Common Stock) (other than with respect to any Additional Shares, for which settlement shall occur in the time periods specified in Section 10.01(c)) will occur on the third Business Day following the final day of such Cash Settlement Averaging Period. (ii) If a Holder elects to convert Securities pursuant to Section 10.01(a)(5) and such Holder, in connection with such conversion, would be entitled to receive Additional Shares, the Company will not send individual notices of its election to satisfy all or any portion of the Conversion Obligation in cash. Instead, if the Company chooses to satisfy all or any portion of the Conversion Obligation in cash, unless the Company has previously sent a notice pursuant to Section 10.03(c), the Company will send a single 56 notice to the Trustee of the dollar amount to be satisfied in cash (which must be expressed either as 100% of the Conversion Obligation or as a fixed dollar amount) in connection with the announcement of the relevant corporate transaction. The Conversion Settlement Distribution will be computed in the same manner as set forth in Section 10.03(a) except that (1) the Cash Settlement Averaging Period shall be the 20 Trading Day period beginning on the Trading Day after the receipt of the Conversion Notice (or, in the event the Company receives the Conversion Notice on the Business Day prior to the Stated Maturity, the 20 Trading Day period beginning on the Trading Day after the Stated Maturity), and (2) if the Securities become convertible into Exchange Property, the Closing Price of the Common Stock shall be deemed to equal the sum of (A) 100% of the value of any Exchange Property consisting of cash received per share of Common Stock, (B) the Closing Price of any Exchange Property received per share of Common Stock consisting of securities that are traded on a U.S. national securities exchange or approved for quotation on The New York Stock Exchange and (3) the Fair Market Value of any other Exchange Property received per share, as determined by two independent nationally recognized investment banks selected by the Trustee for this purpose. Settlement (in cash and/or shares) will occur on the third Business Day following the final day of such Cash Settlement Averaging Period. (c) Notwithstanding anything to the contrary in this Indenture, at any time prior to Stated Maturity, the Company may irrevocably elect, with respect to any Securities which may be converted after the date of such election, in its sole discretion without the consent of the Holders of the Securities, by notice to the Trustee and the Holders of the Securities, (i) to satisfy in cash the lesser of (1) (A) the Conversion Rate, multiplied by (B) the average Closing Price of the Common Stock during the Cash Settlement Averaging Period and (2) 100% of the principal amount of any such Security, with any remaining amount to be satisfied in shares of Common Stock, or (ii) to satisfy all of the Conversion Obligation in shares of Common Stock. Any Conversion Notice delivered following the date the Company makes either such election shall not be retractable, and the Conversion Settlement Distribution shall be computed and settlement dates shall be determined in the same manner as set forth in Section 10.03(a), except that the Cash Settlement Averaging Period shall be the 20 Trading Day period beginning on the Trading Day after receipt of the Conversion Notice. In the case of any Holders who elect to convert any Securities pursuant to the provisions set forth in Section 10.01(a)(5) following the date the Company makes either election set forth in this Section 10.03(c), and such Holder, in connection with such conversion, would be entitled to receive Additional Shares, the Conversion Settlement Distribution will be computed and the settlement dates will be determined in the same manner as set forth in Section 10.03(b)(ii). Section 10.04 Adjustment of Conversion Rate. The Conversion Rate shall be adjusted, without duplication, from time to time by the Company in accordance with this Section 10.04: (a) In case the Company shall hereafter pay a dividend or make a distribution to all or substantially all holders of the outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect at the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution by a fraction, 57 (i) the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus (B) the total number of shares of Common Stock constituting the dividend or distribution; and (ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If any dividend or distribution of the type described in this Section 10.04 is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) In case the Company shall issue rights, warrants or options (other than pursuant to any dividend reinvestment or share repurchase plans) to all or substantially all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 60 days after the date of such distribution) to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price on the date fixed for determination of shareholders entitled to receive such rights, warrants or options, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the date fixed for determination of shareholders entitled to receive such rights, warrants or options by a fraction, (i) the numerator of which shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for determination of shareholders entitled to receive such rights or warrants plus (B) the total number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator of which is the sum of (A) the number of shares of Common Stock outstanding on the date fixed for determination of shareholders entitled to receive such rights or warrants plus (B) the total number of additional shares of Common Stock that the aggregate offering price of the total number of shares of Common Stock offered for subscription or purchase would purchase at the Current Market Price of the Common Stock on such date. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the date fixed for determination of shareholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so exercised, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. (c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of 58 shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of Capital Stock of the Company or evidences of its indebtedness or other assets (including securities, but excluding any rights, options or warrants referred to in Section 10.04(b) and excluding any dividend or distribution (x) paid exclusively in cash or (y) referred to in Section 10.04(a)) (any of the foregoing hereinafter in this Section 10.04(d) called the "Distributed Assets"), then, in each such case, the Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the Ex-Dividend Date with respect to such distribution by a fraction, (i) the numerator of which shall be the Current Market Price per share of the Common Stock on such Ex-Dividend Date; and (ii) the denominator of which shall be the Current Market Price per share of the Common Stock less the Fair Market Value (as determined by the Board of Directors and described in a resolution of the Board of Directors) on the Ex-Dividend Date of the portion of the Distributed Assets so distributed in respect of one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Ex-Dividend Date; provided, however, that in the event (1) the then Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on such Ex-Dividend Date or (2) the Current Market Price of Common Stock on the Ex-Dividend Date exceeds the then Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed applicable to one share of Common Stock by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of Distributed Assets such Holder would have received had such Holder converted each Security on the Ex-Dividend Date for such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 10.04(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Rights or warrants distributed by the Company to all holders of Common Stock entitling the Holders thereof to subscribe for or purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 10.04 (and no adjustment to the Conversion Rate under this Section 10.04 shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 10.04. If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants 59 with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.04 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 10.04(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to Holders of Securities upon conversion by such Holders of Securities to Common Stock. For purposes of this Section 10.04(d) and Section 10.04(a) and (b), any dividend or distribution to which this Section 10.04(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Conversion Rate adjustment required by this Section 10.04(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Section 10.04(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Ex-Dividend Date of such dividend or distribution shall be substituted as "the date fixed for the determination of shareholders entitled to receive such dividend or other distribution," "the date fixed for the determination of shareholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Section 10.04(a) and (b), and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 10.04(a). If any Distributed Assets requiring any adjustment pursuant to this Section 10.04(d) consists of the Capital Stock, or similar equity interests in, a Subsidiary or other business unit of the Company which are or in connection with such distribution will be listed or quoted for trading on a U.S. national or regional securities exchange or The New York Stock Exchange, the Conversion Rate in effect immediately before the close of business on the Ex-Dividend Date fixed for determination of shareholders entitled to receive the distribution shall instead be increased by multiplying the Conversion Rate then in effect by a fraction, (A) the numerator of which is the sum of (1) the average of the Last Reported Sale Prices of such distributed security for the 10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date on The New York Stock Exchange or such other national or regional exchange or market on which such securities are then listed or quoted plus (2) the average of the Closing Prices of the Common Stock over the same Trading Day period and (B) the denominator of which is such average of the Last Reported Sale Prices of the Common Stock for the 10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date on The New York Stock Exchange or such other national or regional exchange or market on which the securities are then listed or quoted. 60 (e) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock cash (an "Extraordinary Cash Dividend") (excluding any quarterly cash dividend on the Company's Common Stock to the extent that the aggregate cash dividend per share of Common Stock related to any fiscal quarter does not exceed $0.0125 (which amount shall be proportionally adjusted in the event of any occurrence described in Section 10.04(a) and Section 10.04(c) (the "Dividend Threshold Amount")), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Ex-Dividend Date for such Extraordinary Cash Dividend by a fraction, (i) the numerator of which shall be the Closing Price of the Common Stock as of the Trading Day before such Ex-Dividend Date, and (ii) the denominator of which shall be such Closing Price of the Common Stock as of the Trading Day before such Ex-Dividend Date minus the amount in cash per share the Company distributes to holders in excess of the Dividend Threshold Amount (and for which no adjustment has been made). If an adjustment is required to be made pursuant to this Section 10.04(e), as a result of a distribution that is not a regular quarterly cash dividend, the Dividend Threshold Amount will be deemed to be zero. The Dividend Threshold Amount is subject to adjustment in a manner inversely proportional to adjustments to the Conversion Rate, provided that no adjustment shall be made to the Dividend Threshold Amount for any adjustment made to the Conversion Rate pursuant to this Section 10.04(e). The adjustment shall become effective immediately after the close of business on the Business Day immediately preceding the Ex-Dividend Date with respect to the distribution. As used in this Section 10.04(e), "Ex-Dividend Date" means the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question. (f) In case a tender (other than an odd-lot offer) or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders of consideration per share of Common Stock having a Fair Market Value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) that as of the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the Expiration Time by a fraction, (i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to shareholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged 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) at the Expiration Time and the average of the Last Reported Sale Prices of the Common Stock on the 10 Trading Days commencing on and including the first Trading Day after the Expiration Time, and (ii) the denominator of which shall be the product of the number of shares of Common Stock outstanding (including any Purchased Shares) at the Expiration Time multiplied by the average of the 61 Last Reported Sale Prices of the Common Stock on the 10 Trading Days commencing on and including the first Trading Day after the Expiration Time, such adjustment to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. (g) The Company may make such increases in the Conversion Rate, in addition to those required by this Section 10.04, as the Board of Directors considers to be advisable to avoid or diminish any U.S. federal income tax to holders of Common Stock resulting from any stock dividend or distribution (or rights to acquire capital stock) or from any event treated as such for income tax purposes; provided, however, that such increase in the Conversion Rate shall not adversely affect the interests of the Holders of Securities (after taking into account U.S. federal income tax and other consequences of such increase). To the extent permitted by applicable law and the listing requirements of The New York Stock Exchange or any national securities exchange on which the Common Stock is then listed, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least 20 days, the increase is irrevocable during the period and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence or the first paragraph of this Section 10.04(g), the Company shall deliver to the Trustee and Holders of record of the Securities a notice of the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it shall be in effect. (h) All calculations under this Article 10 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth of a share, as the case may be, with one half-cent and 0.005 of a share, respectively, being rounded upward. Notwithstanding the foregoing, no adjustment need be made for: (i) the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company's securities and the investment of additional optional amounts in shares of Common Stock under any plan, (ii) the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries, (iii) the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date the Securities were first issued, including the issuance of shares of Common Stock upon the conversion or exchange of any of the Company's Class B Common Shares outstanding as of the date the Securities were first issued, (iv) a change in the par value of the Common Stock, or (v) accrued and unpaid Interest, including Additional Interest, if any. 62 (i) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent (if other than the Trustee) an Officer's Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer's Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to the Holder of each Security at his last address appearing on the Security register provided for in Section 2.03 of this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment. (j) In any case in which this Section 10.04 provides that an adjustment shall become effective immediately after (1) a record date or Ex-Dividend Date for an event, (2) the date fixed for the determination of shareholders entitled to receive a dividend or distribution pursuant to Section 10.04(a), (3) a date fixed for the determination of shareholders entitled to receive rights or warrants pursuant to Section 10.04(b), (4) the effective date of any subdivision or combination of Common Stock, or (5) the Expiration Time for any tender or exchange offer pursuant to Section 10.04(f), (each a "Determination Date"), the Company may elect to defer until the occurrence of the relevant Adjustment Event (as hereinafter defined) (x) issuing to the Holder of any Security converted after such Determination Date and before the occurrence of such Adjustment Event, the additional shares of Common Stock or other securities issuable upon such conversion by reason of the adjustment required by such Adjustment Event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (y) paying to such Holder any amount in cash in lieu of any fraction pursuant to Section 10.04(a). For purposes of this Section 10.04(j), the term "Adjustment Event" shall mean: (i) in any case referred to in clause (1) hereof, the occurrence of such event, (ii) in any case referred to in clause (2) hereof, the date any such dividend or distribution is paid or made, (iii) in any case referred to in clause (3) hereof, the date of expiration of such rights or warrants, (iv) in any case referred to in clause (4) hereof, the date of such subdivision or combination, and (v) in any case referred to in clause (5) hereof, the date a sale or exchange of Common Stock pursuant to such tender or exchange offer is consummated and becomes irrevocable. (k) For purposes of this Section 10.04, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. Section 10.05 Effect of Reclassification, Consolidation, Merger or Sale. (a) If any of the following events occur, namely (i) any reclassification or change of the outstanding shares of Common Stock (other than a subdivision or combination to which Section 10.04(c) 63 applies or a change in par value) as a result of which holders of Common Stock shall be entitled to receive Exchange Property with respect to or in exchange for such Common Stock, (ii) any consolidation, merger, binding share exchange or combination of the Company with another Person as a result of which holders of Common Stock shall be entitled to receive Exchange Property with respect to or in exchange for such Common Stock, or (iii) any sale or conveyance of all or substantially all the properties and assets of the Company to any other Person as a result of which holders of Common Stock shall be entitled to receive Exchange Property with respect to or in exchange for such Common Stock, then the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture) providing for the conversion and settlement of the Securities as set forth in this Indenture. Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 10. If, in the case of any such reclassification, change, consolidation, merger, binding share exchange, combination, sale or conveyance, the Exchange Property receivable thereupon by a holder of Common Stock includes shares of stock or other securities and assets of a corporation other than the successor or purchasing corporation, as the case may be, in such reclassification, change, consolidation, merger, binding share exchange, combination, sale or conveyance, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing. (b) The Conversion Obligation with respect to each $1,000 principal amount of Securities converted following the effective date of any such transaction, shall be calculated (as provided in clause (c) below) based on the Exchange Property. In the event holders of the Common Stock have the opportunity to elect the form of consideration to be received in such transaction (subject to the ability of the Company to settle the Conversion Obligation in cash pursuant to Section 10.03), the Company shall make adequate provision whereby the Holders of the Securities shall have a reasonable opportunity to determine the form of consideration, consistent with the election rights and restrictions applicable to holders of Common Stock, into which all of the Securities, treated as a single class, shall be convertible from and after the effective date of such transaction. Such determination shall be made pursuant to Section 1.05 and shall be subject to any limitations to which all of the holders of the Common Stock are subject, such as pro-rata reductions applicable to any portion of the consideration payable in such event and shall be conducted in such a manner as to be completed by the date which is the earliest of (a) the deadline for elections to be made by holders of the Common Stock in connection with such transaction, and (b) two Trading Days prior to the anticipated effective date of such event. The Company shall provide notice of the opportunity to determine the form of such consideration, as well as notice of the determination made by Holders of the Securities by issuing a press release and providing a copy of such notice to the Trustee. The Company shall not become a party to any such transaction unless its terms are consistent with the preceding. (c) The Conversion Obligation in respect of any Securities converted following the effective date of any such transaction shall be computed in the same manner as set forth in Section 10.03(a) except that (1) the Cash Settlement Averaging Period shall be the 10 Trading Day period beginning on the second Trading Day after the Conversion Date (or, in the event the Conversion Date is on the Business Day prior to the Stated Maturity, the 10 Trading Day period beginning on the second Trading Day after the Stated Maturity), and (2) if the Securities become convertible into Exchange Property, the Last Reported Sale Price of the Common Stock shall be deemed to equal the sum of (A) 100% of the value of any Exchange Property consisting of cash received per share of Common Stock, (B) the Last Reported Sale Price of any Exchange Property received per share of Common Stock consisting of securities that are traded on a U.S. national securities exchange or approved for quotation on The New York Stock Exchange and (C) the Fair Market Value of any other Exchange Property received per share, as determined by three independent nationally recognized investment banks selected by the Company for 64 this purpose. Settlement (in cash and/or shares) shall occur on the third Business Day following the final day of such Cash Settlement Averaging Period, provided, that any amount of the Conversion Settlement Distribution to be delivered in shares of Common Stock shall be paid in Exchange Property rather than shares of Common Stock. If the Exchange Property includes more than one kind of property, the amount of Exchange Property of each kind to be delivered shall be in the proportion that the value of the Exchange Property (as calculated pursuant to Section 10.03) of such kind bears to the value of all such Exchange Property. If the foregoing calculations would require the Company to deliver a fractional share or unit of Exchange Property to a Holder of Securities being converted, the Company shall deliver cash in lieu of such fractional share or unit based on the value of the Exchange Property. (d) The Company shall cause notice of the execution of such supplemental indenture to be delivered to each Holder of Securities, at its address appearing on the Security register provided for in Section 2.03 of this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. (e) The above provisions of this Section 10.05 shall similarly apply to successive reclassifications, changes, consolidations, mergers, statutory share exchanges, combinations, sales and conveyances. If this Section 10.05 applies to any event or occurrence, Section 10.04 shall not apply. Section 10.06 Taxes on Shares Issued. The issue of stock certificates on conversions of Securities shall be made without charge to the converting Holder for any tax in respect of the issue thereof, except for applicable withholding, if any. The Company shall not, however, be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Securities converted, and the Company shall not be required to issue or deliver any such stock certificate unless and until the Person or Persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. Section 10.07 Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental Requirements. (a) The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock for the conversion of the Securities from time to time as such Securities are presented for conversion. (b) Before taking any action which would cause an adjustment increasing the Conversion Rate to an amount that would cause the Conversion Price to be reduced below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Securities, the Company shall take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate. (c) (i) The Company covenants that all shares of Common Stock which may be issued upon conversion of Securities shall upon issue be fully paid and non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof. (ii) The Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Securities hereunder require registration with or approval of any governmental 65 or regulatory authority under any federal or state law, regulation or requirement (including but not limited to, the shareholder approval rules of The New York Stock Exchange) before such shares may be validly issued upon conversion, the Company shall in good faith and as expeditiously as possible, to the extent then permitted by the rules and interpretations of the SEC (or any successor thereto), endeavor to secure such registration or approval, as the case may be. Section 10.08 Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Securities to determine the Conversion Rate or whether any facts exist which may require any adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at any time be issued or delivered upon the conversion of any Security; and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 10. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 10.05 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Securities after any event referred to in such Section 10.05 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon the Officer's Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Section 10.09 Notice to Holders Prior to Certain Actions. In case: (a) the Company shall declare a dividend (or any other distribution) on its Common Stock that would require an adjustment in the Conversion Rate pursuant to Section 10.04; or (b) the Company shall authorize the granting to the holders of all of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or any other rights or warrants that would require an adjustment in the Conversion Rate pursuant to Section 10.04(b); or (c) of any reclassification or reorganization of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation, merger or statutory share exchange to which the Company is a party and for which approval of any shareholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; the Company shall cause to be filed with the Trustee and to be delivered to each Holder of Securities at his address appearing on the register provided for in Section 2.03 of this Indenture, as promptly as 66 possible but in any event at least ten (10) days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution of rights or warrants, or, if a record is not to be taken, the date as of which the Holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, or statutory share exchange, sale, transfer, dissolution, liquidation or winding up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, or statutory share exchange, sale, transfer, dissolution, liquidation or winding up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, or statutory share exchange, sale, transfer, dissolution, liquidation or winding up. Section 10.10 Shareholder Rights Plan. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Stock, a Holder who converts securities shall receive, in addition to the Common Stock, the rights under the rights plan, unless prior to any conversion, the rights have separated from the Common Stock, in which case the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all Holders of Common Stock, shares of the Company's Capital Stock, evidences of indebtedness or assets as described in Section 10.04(d) above, subject to readjustment in the event of the expiration, termination or redemption of such rights. In lieu of any such adjustment, the Company may amend such applicable shareholder rights plan to provide that upon conversion of the Securities the Holders shall receive, in addition to the Common Stock issuable upon such conversion, the rights which would have attached to such Common Stock if the rights had not become separated from the Common Stock under such applicable shareholder rights agreement. Section 10.11 Unconditional Right of Holders to Convert. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to convert its Security in accordance with this Article 10 and to bring an action for the enforcement of any such right to convert, and such rights shall not be impaired or affected without the consent of such Holder. Section 10.12 Limitation on Adjustments. The Company shall not take any action that would result in an adjustment pursuant to the foregoing provisions in this Article 10 without complying with The New York Stock Exchange's shareholder approval rules, to the extent applicable. ARTICLE 11 SUBORDINATION Section 11.01 Agreement of Subordination. The Company covenants and agrees, and each Holder of Securities issued hereunder by its acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article 11; and each Person holding any Security, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such provisions. The payment of the principal, Interest and Additional Interest, if any, on all Securities (including, but not limited to, the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase 67 Price with respect to the Securities subject to redemption or repurchase in accordance with Article 3 and the payment of any cash upon conversion in accordance with Article 10) issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full in cash or other payment satisfactory to the holders of Senior Debt of all Senior Debt, whether outstanding at the date of this Indenture or thereafter incurred. No provision of this Article 11 shall prevent the occurrence of any default or Event of Default hereunder. Section 11.02 Payments to Holders. (a) No payment shall be made with respect to the principal of, redemption of, Interest or Additional Interest, if any, or any other amounts due on the Securities (including, but not limited to, the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price with respect to the Securities subject to redemption or purchase in accordance with Article 3 and any payment of cash upon conversion in accordance with Article 10), except (i) payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 11.05 and (ii) as set forth in Section 11.08, if: (i) a default in the payment of any Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument evidencing such Designated Senior Debt) (a "Payment Default"); or (ii) a default, other than a Payment Default, occurs and is continuing that then permits holders of such Designated Senior Debt (or any Representative) to accelerate its maturity (a "Non-Payment Default") and a Responsible Officer of the Trustee receives at the Corporate Trust Office a written notice of the default (a "Payment Blockage Notice") from a Representative of Designated Senior Debt. Notwithstanding the foregoing, not more than one Payment Blockage Notice may be given in any consecutive 365-day period, irrespective of the number of defaults with respect to Designated Senior Debt during such period. No default which existed or was continuing on the date of the delivery of any Payment Blockage Notice with respect to the Designated Senior Debt whose holders delivered the Payment Blockage Notice may be made the basis of a subsequent Payment Blockage Notice by the holders of such Designated Senior Debt, whether or not within a period of 365 consecutive days, unless the default has been cured or waived for a period of not less than 90 consecutive days. The Company may and shall resume payments on and distributions in respect of the Securities: (i) in the case of a Payment Default, upon the date upon which such Payment Default is cured or waived or ceases to exist, or (ii) in the case of a Non-Payment Default, the earlier of (i) the date on which such Non-Payment Default is cured or waived or ceases to exist, in each case as and to the extent permitted under the documentation for the Designated Senior Debt, or (ii) 179 days from after the date on which the applicable Payment Blockage Notice is received, in each case, unless the maturity of the Designated Senior Debt has been accelerated in which case the immediately preceding clause (i) shall become applicable. 68 (b) Upon any payment by the Company, or any distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors, in each case upon any dissolution or winding-up or liquidation or reorganization of the Company (whether voluntary or involuntary) or in bankruptcy, insolvency, receivership or similar proceedings, all amounts due or to become due upon all Senior Debt shall first be paid in full in cash, or other payments satisfactory to the holders of Senior Debt, before any payment of cash, property or securities is made on account of the principal of, redemption of, Interest or Additional Interest, if any, on, or with respect to the conversion of, the Securities (except (i) payments made pursuant to Article 8 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding-up, liquidation or reorganization and (ii) Holders may receive junior securities as set forth in Section 11.08); and upon any such dissolution or winding-up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other proceeding, any payment by the Company, or any distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities or the Trustee would be entitled, except for the provision of this Article 11, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Debt may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt in full in cash, or other payment satisfactory to the holders of Senior Debt, after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt, before any payment or distribution is made to the Holders of the Securities or to the Trustee. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance, transfer or lease of all or substantially all its property to another corporation upon the terms and conditions provided for in Article 5 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 11.02 if such other corporation shall, as a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions stated in Article 5. (c) If the payment of the Securities is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt or their Representatives of such acceleration. The Company shall not pay the Securities until five Business Days after the holders or Representatives for the holders of Senior Debt receive notice of the acceleration and after which the Company shall pay the Securities only if this Article 11 otherwise permits payment at that time. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior Debt is paid in full, in cash or other payment satisfactory to the holders of Senior Debt, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of Senior Debt, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated and directed by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full, in cash or other payment satisfactory to the holders of Senior Debt or their Representative, after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt. 69 Nothing in this Section 11.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.10 and Section 7.07. This Section 11.02 shall be subject to the further provisions of Section 11.05. Section 11.03 Subrogation of Securities. Subject to the payment in full, in cash or other payment satisfactory to the holders of Senior Debt, of all Senior Debt, the rights of the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Debt pursuant to the provisions of this Article 11 (equally and ratably with the holders of all indebtedness of the Company which by its express terms is subordinated to Senior Debt of the Company to substantially the same extent as the Securities are subordinated and is entitled to like rights of subrogation) to the rights of the holders of Senior Debt to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Debt until the principal, Interest or Additional Interest, if any, on the Securities shall be paid in full in cash or other payment satisfactory to the holders of Securities; and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article 11, and no payment pursuant to the provisions of this Article 11, to or for the benefit of the holders of Senior Debt by Holders of the Securities or the Trustee, shall, as between the Company, its creditors other than holders of Senior Debt, and the Holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Debt; and no payments or distributions of cash, property or securities to or for the benefit of the Holders of the Securities pursuant to the subrogation provisions of this Article 11, which would otherwise have been paid to the holders of Senior Debt shall be deemed to be a payment by the Company to or for the account of the Securities. It is understood that the provisions of this Article 11 are and are intended solely for the purposes of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Debt, on the other hand. Nothing contained in this Article 11 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the principal of, redemption of, Interest and Additional Interest, if any, on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of the Senior Debt, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article 11 of the holders of Senior Debt in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article 11, the Trustee, subject to the provisions of Section 7.01, and the Holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon and all other facts pertinent thereto or to this Article 11. 70 Section 11.04 Authorization to Effect Subordination. Each Holder by its acceptance of a Note agrees to be bound by this Article 11 and authorizes and expressly directs the Trustee, on his behalf, to take such action as may be necessary or appropriate to effectuate the subordination between the Holders and the holders of Senior Debt as provided in this Article 11 and appoints the Trustee as attorney-in-fact for any and all such purposes. If the Trustee does not file a proof of claim in such proceeding prior to 30 days before the expiration of the time to file a proof of claim in such proceeding, then the holders of Senior Debt (or their Representative) are hereby authorized to have the right to file and are (or is) hereby authorized to file, in the name of the Trustee, a proof of claim for and on behalf of the Holders; provided that (i) if the holders of the Senior Debt (or their Representative) file any proof of claim as contemplated above and the Trustee shall subsequently file a proof of claim in such proceeding before the expiration of the time to file a proof of claim in such proceeding, such subsequent proof of claim filed by the Trustee shall supersede any such proof of claim theretofore filed by the holders of the Senior Debt (or their Representative), and such proof of claim theretofore filed by the holders of the Senior Debt (or their Representative) shall thereupon be deemed to be withdrawn, and (ii) the foregoing provisions of this paragraph shall not be construed to authorize the holders of the Senior Debt (or their Representative) to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes, or to authorize the holders of the Senior Debt (or their Representative) to vote in respect of the claim of any Holder in any such proceeding. This paragraph is intended solely to permit the holders of Senior Debt to preserve their "turnover right" pursuant to the applicable subordination provisions in this Article 11 in circumstances where a proof of claim has not been filed by the Trustee before the expiration of the time to file a proof of claim in a bankruptcy proceeding, and nothing herein is intended to impair the rights of the Trustee under Section 6.10 and Section 7.07. Section 11.05 Notice to Trustee. The Company shall give prompt written notice in the form of an Officer's Certificate to a Responsible Officer of the Trustee and to any Paying Agent of any fact known to the Company which would prohibit the making of any payment of monies to or by the Trustee or any Paying Agent in respect of the Securities pursuant to the provisions of this Article 11. Notwithstanding the provisions of this Article 11 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this Article 11, unless and until a Responsible Officer of the Trustee shall have actual knowledge thereof or received written notice thereof at the Corporate Trust Office from the Company (in the form of an Officer's Certificate) or a Representative or a holder or holders of Senior Debt or from any trustee thereof. The Trustee, subject to the provisions of Section 7.01, shall be entitled to rely on the delivery to it of a written notice by a Representative or a person representing himself to be a holder of Senior Debt (or a trustee on behalf of such holder) or Designated Senior Debt to establish that such notice has been given by a Representative or a holder of Senior Debt or Designated Senior Debt. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any person as a holder of Senior Debt or Designated Senior Debt to participate in any payment or distribution pursuant to this Article 11, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt or Designated Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article 11, and if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. 71 Section 11.06 Trustee's Relation to Senior Debt. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article 11 in respect of any Senior Debt at any time held by it, to the same extent as any other holder of Senior Debt, and nothing in Section 7.11 or elsewhere in this Indenture shall deprive the Trustee of any of its rights as such holder. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be liable to any such Holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article 11 or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article 11 and no implied covenants or obligations with respect to holders of Senior Debt shall be read into this Indenture against the Trustee. Section 11.07 No Impairment of Subordination. No right of any present or future holder of any Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with. Section 11.08 Certain Issuances Not Deemed Payment. For the purposes of this Article 11 only, the issuance and delivery of common stock or other securities into which Securities are then convertible upon conversion of Securities in accordance with Article 10 and the issuance of junior securities in respect of the Securities shall not be deemed to constitute a payment or distribution on account of the principal of such Security or interest. For the purposes of this Article 11, the term "junior securities" means (a) shares of any Capital Stock of any class of the Company, or (b) debt of the Company which is subordinated in right of payment to all Senior Debt that may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article 11. Section 11.09 Obligations Not Impaired. Nothing contained in this Article 11 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company and the Holders, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with Article 10. Section 11.10 Article Applicable to Paying Agents. If at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article 11 shall (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article 11 in addition to or in place of the Trustee; provided, however, that the first paragraph of Section 11.05 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent. 72 Section 11.11 Senior Debt Entitled to Rely. The holders of Senior Debt (including, without limitation, Designated Senior Debt) shall have the right to rely upon this Article 11, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders shall have agreed in writing thereto. ARTICLE 12 GUARANTEES Section 12.01 Guarantee. (a) Subject to this Article 12, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, that: (1) the principal of, premium and Additional Interest, if any, and interest on the Securities will be promptly paid in full when due, whether at Stated Maturity, by acceleration or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. (b) The obligations of the Guarantors hereunder are independent of the obligations of the Company under the Securities and this Indenture and a separate action or actions may be brought and prosecuted against any Guarantor whether or not an action or proceeding is brought against the Company and whether or not the Company is joined in any such action or proceeding. The liability of the Guarantors hereunder is irrevocable, absolute and unconditional and (to the extent permitted by law) the liability and obligations of the Guarantors hereunder shall not be released, discharged, mitigated, waived, impaired or affected in whole or in part by: (i) any defect or lack of validity or enforceability in respect of any Indebtedness or other obligation of the Company or any other Person under this Indenture or the Securities, or any agreement or instrument relating to any of the foregoing; (ii) any grants of time, renewals, extensions, indulgences, releases, discharges or modifications which the Trustee or the Holders may extend to, or make with, the Company, any Guarantor or any other Person, or any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations under the Indenture or the Securities, or any other amendment or waiver of, or any consent to or departure from, this Indenture or the Securities, including any increase or decrease in the Obligations under the Indenture or the Securities; (iii) the taking of security from the Company, any Guarantor or any other Person, and the release, discharge or alteration of, or other dealing with, such security; 73 (iv) the occurrence of any change in the laws, rules, regulations or ordinances of any jurisdiction by any present or future action of any governmental authority or court amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the Obligations under the Indenture or the Securities and the obligations of any Guarantor hereunder; (v) the abstention from taking security from the Company, any Guarantor or any other Person or from perfecting, continuing to keep perfected or taking advantage of any security; (vi) any loss, diminution of value or lack of enforceability of any security received from the Company, any Guarantor or any other Person, and including any other guarantees received by the Trustee; (vii) any other dealings with the Company, any Guarantor or any other Person, or with any security; (viii) Trustee's or the Holders' acceptance of compositions from the Company or any Guarantor; (ix) the application by the Holders or the Trustee of all monies at any time and from time to time received from the Company, any Guarantor or any other Person on account of any indebtedness and liabilities owing by the Company or any Guarantor to the Trustee or the Holders, in such manner as the Trustee or the Holders deems best and the changing of such application in whole or in part and at any time or from time to time, or any manner of application of collateral, or proceeds thereof, to all or any of the Obligations under the Indenture or the Securities, or the manner of sale of any collateral; (x) the release or discharge of the Company or any Guarantor of the Securities or of any Person liable directly as surety or otherwise by operation of law or otherwise for the Securities, other than an express release in writing given by the Trustee, on behalf of the Holders, of the liability and obligations of any Guarantor hereunder; (xi) any change in the name, business, capital structure or governing instrument of the Company or any Guarantor or any refinancing or restructuring of any of the Obligations under the Indenture or the Securities; (xii) the sale of the Company's or any Guarantor's business or any part thereof; (xiii) subject to Section 12.07, any merger or consolidation, arrangement or reorganization of the Company, any Guarantor, any Person resulting from the merger or consolidation of the Company or any Guarantor with any other Person or any other successor to such Person or merged or consolidated Person or any other change in the corporate existence, structure or ownership of the Company or any Guarantor or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship; (xiv) the insolvency, bankruptcy, liquidation, winding-up, dissolution, receivership, arrangement, readjustment, assignment for the benefit of creditors or distribution of the assets of the Company or its assets or any resulting discharge of any obligations of the Company (whether voluntary or involuntary) or of any Guarantor (whether voluntary or involuntary) or the loss of corporate existence; (xv) subject to Section 12.07, any arrangement or plan of reorganization affecting the Company or any Guarantor; 74 (xvi) any failure, omission or delay on the part of the Company to conform or comply with any term of this Indenture; (xvii) any limitation on the liability or obligations of the Company or any other Person under this Indenture, or any discharge, termination, cancellation, distribution, irregularity, invalidity or unenforceability in whole or in part of this Indenture; (xviii) any other circumstance (including any statute of limitations) that might otherwise constitute a defense available to, or discharge of, the Company or any Guarantor; or (xix) any modification, compromise, settlement or release by the Trustee, or by operation of law or otherwise, of the Obligations under the Indenture or the Securities or the liability of the Company or any other obligor under the Securities, in whole or in part, and any refusal of payment by the Trustee, in whole or in part, from any other obligor or other guarantor in connection with any of the Obligations under the Indenture or the Securities, whether or not with notice to, or further assent by, or any reservation of rights against, each of the Guarantors. (c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect. (d) Each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under federal bankruptcy law) or otherwise by reason of any payment by it pursuant to the provisions of this Article 12 until payment in full of all Obligations under the Indenture, the Securities and the Guarantees. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Guarantee. Each Guarantor that makes a payment or distribution under its Guarantee shall be entitled to a contribution from each other Guarantor, if any, so long as the exercise of such right does not impair the rights of the Holders under the Guarantee, in a pro rata amount based on the net assets of each Guarantor, determined in accordance with GAAP. Section 12.02 Subordination of Guarantees. The Obligations of each Guarantor under its Guarantee pursuant to this Article 12 will be junior and subordinated to the Senior Debt of such Guarantor on the same basis as the Securities are junior and subordinated to Senior Debt of the Company. For the purposes of the foregoing sentence, the Trustee and the Holders will have the right to receive and/or retain payments by any of the Guarantors only at such times as they may receive and/or retain payments in respect of the Securities pursuant to this Indenture, including Article 11 hereof. Each Holder of Securities, by accepting a Security or a Guarantee, acknowledges and agrees that the subordination provisions set forth in Article 11 are, and are intended to be, an inducement and consideration to each holder of Senior Debt, whether such Senior Debt was created or acquired before or after the issuance of the Securities or the Guarantees, to acquire and continue to hold, or to continue to hold, such Senior Debt, and such holder of Senior Debt shall be deemed conclusively to have relied on the 75 subordination provisions set forth in this Article 12 in acquiring and continuing to hold, or in continuing to hold, such Senior Debt. The provisions of this Section 12.02, insofar as they relate to the subordination of the Guarantees to Senior Debt of the Company, may not be amended or modified without the written consent of the holders of all Senior Debt. Section 12.03 Guarantee is in Addition to Other Security. This Guarantee shall be in addition to and not in substitution for any other guarantees which the Trustee may now or hereafter hold in respect of the Obligations under the Indenture and the Securities owing to the Trustee or the Holders by the Company and (except as may be required by law) the Trustee shall be under no obligation to marshal in favor of each of the Guarantors any other guarantees or any moneys or other assets which the Trustee may be entitled to receive or upon which the Trustee or the Holders may have a claim. Section 12.04 Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies. (a) No failure to exercise and no delay in exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under this Article 12 and this Guarantee shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. (b) Nothing contained in this Article 12 shall limit the right of the Trustee or the Holders to take any action to accelerate the maturity of the Securities pursuant to Article 6 or to pursue any rights or remedies hereunder or under applicable law. Section 12.05 Limitation on Guarantor Liability. Each Guarantor that is a Subsidiary of the Company, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the Guarantee by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under its Guarantee shall be limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under this Indenture, will result in the obligations of such Guarantor under its Guarantee not constituting such fraudulent transfer or conveyance. Section 12.06 Execution and Delivery of Guarantee. To evidence its Guarantee set forth in Section 12.01 hereof, each Guarantor hereby agrees that a notation of such Guarantee substantially in the form attached as Exhibit F hereto will be endorsed by an Officer of such Guarantor on each Security authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its Officers. 76 Each Guarantor hereby agrees that its Guarantee set forth in Section 12.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Guarantee. If an Officer whose signature is on this Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Security on which a Guarantee is endorsed, the Guarantee will be valid nevertheless. The delivery of any Security by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor. In the event that the Company or any of its Subsidiaries creates or acquires any Domestic Subsidiary after the date of this Indenture, if required by Section 4.09 hereof, the Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.09 hereof and this Article 12, to the extent applicable. Section 12.07 Releases. (a) In the event that any Guarantor no longer guarantees Indebtedness of the Company or any of the Subsidiaries of the Company that was incurred, issued or raised in a public or private U.S. capital markets transaction, other than the Securities, then such Guarantor will be released and relieved of any obligations under its Guarantee. Upon delivery by the Company to the Trustee of an Officer's Certificate and an Opinion of Counsel to the effect that such Guarantor no longer guarantees such Indebtedness, the Trustee will execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Guarantee and this Indenture. (b) Upon satisfaction and discharge of this Indenture in accordance with Article 12 hereof, each Guarantor will be released and relieved of any obligations under its Guarantee. Any Guarantor not released from its obligations under its Guarantee as provided in this Section 12.07 will remain liable for the full amount of principal of and interest and premium and Additional Interest, if any, on the Securities and for the other obligations of any Guarantor under this Indenture as provided in this Article 12. ARTICLE 13 MISCELLANEOUS Section 13.01 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. Section 13.02 Notices. Any request, demand, authorization, notice, waiver, consent or communication by the Company, any Guarantor or the Trustee to the other is duly given if in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows or transmitted by facsimile transmission to the following facsimile numbers: if to the Company and/or any Guarantor: Invacare Corporation One Invacare Way 77 Elyria, Ohio 44036 Attention: General Counsel Facsimile: (440) 329-6975 With a copy to: Calfee, Halter & Griswold LLP 1400 McDonald Investment Center 800 Superior Avenue Cleveland, Ohio 44114 Facsimile: (216) 241-0816 Attention: Douglas A. Neary if to the Trustee: Wells Fargo Bank, N.A. Corporate Trust Services MAC N9303-120 608-2nd Avenue South Minneapolis, MN 55479 Attention: Invacare Account Manager Facsimile: (612) 667-9825 The Company, any Guarantor or the Trustee by notice given to the other in the manner provided above may designate additional or different addresses for subsequent notices or communications. Any notice or communication given to a Securityholder shall be delivered to the Securityholder, in accordance with the procedures of the Registrar or by first-class mail, postage prepaid, at the Securityholder's address as it appears on the registration books of the Registrar and shall be sufficiently given if so delivered within the time prescribed. Failure to deliver a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is delivered in the manner provided above, it is duly given, whether or not received by the addressee; provided, however, that no notice to the Trustee shall be deemed to be duly given unless and until the Trustee actually receives same at the address given above. If the Company delivers a notice or communication to the Securityholders, it shall deliver a copy to the Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar. Section 13.03 Communication by Holders with Other Holders. Securityholders may communicate pursuant to TIA Section 312(b) with other Securityholders with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone else shall have the protection of TIA Section 312(c). Section 13.04 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: 78 (i) an Officer's Certificate stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (ii) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Section 13.05 Statements Required in Certificate or Opinion. Each Officer's Certificate or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture shall include: (i) a statement that each person making such Officer's Certificate or Opinion of Counsel has, on behalf of the Company, read such covenant or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such Officer's Certificate or Opinion of Counsel are based; (iii) a statement that, in the opinion of each such person, he has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement that, in the opinion of such person, such covenant or condition has been complied with. Section 13.06 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 13.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar. The Trustee may make reasonable rules for action by or a meeting of Securityholders. The Registrar, the Conversion Agent and the Paying Agent may make reasonable rules for their functions. Section 13.08 Legal Holidays. A "legal holiday" is any day other than a Business Day. If any specified date (including a date for giving notice) is a legal holiday, the action shall be taken on the next succeeding day that is not a legal holiday, and, if the action to be taken on such date is a payment in respect of the Securities, no interest shall accrue with respect to such payment for the intervening period. Section 13.09 Governing Law. THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF. Section 13.10 No Recourse Against Others. A director, officer, employee or shareholders, as such, of the Company or any Guarantor shall not have any liability for any obligations of the Company or the Guarantors under the Securities, this 79 Indenture or the Guarantees or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities. Section 13.11 Successors. All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors. Section 13.12 Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. 80 IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this Indenture on behalf of the respective parties hereto as of the date first above written. INVACARE CORPORATION By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President and COO 81 ADAPTIVE SWITCH LABORATORIES, INC. INVACARE FLORIDA CORPORATION INVACARE CREDIT CORPORATION THE AFTERMARKET GROUP, INC. THE HELIXX GROUP, INC. CHAMPION MANUFACTURING INC. HEALTHTECH PRODUCTS, INC. INVACARE CANADIAN HOLDINGS, INC. INVACARE INTERNATIONAL CORPORATION By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President 82 KUSCHALL, INC. ALTIMATE MEDICAL, INC. INVACARE SUPPLY GROUP, INC. INVACARE HOLDINGS, LLC By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President 83 FREEDOM DESIGNS, INC. By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President 84 MEDBLOC, INC. GARDEN CITY MEDICAL INC. By: /s/ Bradford J. Patrick ------------------------------------ Name: Bradford J. Patrick Title: Assistant Secretary 85 INVACARE FLORIDA HOLDINGS, LLC By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President 86 IN WITNESS WHEREOF, the undersigned, being duly authorized, has executed this Indenture on behalf of the Trustee as of the date first above written. WELLS FARGO BANK, N.A., as Trustee By: /s/ Lynn M. Steiner ------------------------------------ Name: Lynn M. Steiner Title: Vice President 87 EXHIBIT A [FORM OF FACE OF GLOBAL SECURITY] UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. [THIS DEBENTURE AND ANY COMMON SHARES ISSUABLE UPON THE CONVERSION OF THIS DEBENTURE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS DEBENTURE IS HEREBY NOTIFIED THAT THE SELLER OF THIS DEBENTURE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THIS DEBENTURE AND ANY COMMON SHARES ISSUABLE UPON THE CONVERSION OF THIS DEBENTURE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a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onvertible Senior Subordinated Debentures Due 2027 CUSIP: 461203AC5 ISSUE DATE: February 12, 2007 Principal Amount: $135,000,000 No. _____ INVACARE CORPORATION, an Ohio corporation, promises to pay to Cede & Co. or registered assigns, the principal amount of ONE HUNDRED THIRTY FIVE MILLION dollars, on February 1, 2027. Interest Rate: 4.125% per year. Interest Payment Dates: February 1 and August 1 of each year, commencing August 1, 2007. Interest Record Date: January 15 and July 15 of each year. Reference is hereby made to the further provisions of this Security set forth on the reverse side of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. A-3 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. Dated: February 12, 2007 INVACARE CORPORATION By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- TRUSTEE'S CERTIFICATE OF AUTHENTICATION WELLS FARGO BANK, N.A., as Trustee, certifies that this is one of the Securities referred to in the within-mentioned Indenture. By: --------------------------------- Authorized Officer Dated: February 12, 2007 A-4 [FORM OF REVERSE OF GLOBAL SECURITY] 4.125% Convertible Senior Subordinated Debentures Due 2027 This Security is one of a duly authorized issue of 4.125% Convertible Senior Subordinated Debentures Due 2027 (the "Securities") of Invacare Corporation, an Ohio corporation (including any successor corporation under the Indenture hereinafter referred to, the "Company"), issued under an Indenture, dated as of February 12, 2007 (the "Indenture"), among the Company, the Guarantors and Wells Fargo Bank, N.A., as trustee (the "Trustee"). This Security is entitled to the benefits of the Guarantees by the Guarantors of the punctual payment when due and performance of the obligations under the Indenture and this Security. Reference is made to Article 12 of the Indenture for a statement of the respective rights, limitations of rights, duties and obligations under the Guarantees of the Guarantors. The terms of the Security include those stated in the Indenture, those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended ("TIA"), and those set forth in this Security. This Security is subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Security and the terms of the Indenture, the terms of the Indenture shall control. Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture unless otherwise indicated. 1. INTEREST. The Securities shall bear interest on the principal amount thereof at a rate of 4.125% per year. The Company shall pay Additional Interest, if any, as set forth in the Indenture. Interest shall be payable in cash semi-annually in arrears on each Interest Payment Date to Holders at the close of business on the preceding Interest Record Date. Interest shall be computed on the basis of a 360-day year comprised of twelve 30 day months. The Company shall pay Interest to the Securityholder of record on the Interest Record Date even if the Company elects to redeem, or Securityholders elect to require the Company to repurchase, the Securities on a date that is after an Interest Record Date but on or prior to the corresponding Interest Payment Date. In that instance, the Company shall pay accrued and unpaid Interest on the Securities being redeemed to, but not including, the Redemption Date, the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, in cash to the Securityholder of record on the Interest Record Date. If the principal amount of any Security, or any accrued and unpaid Interest, if any, are not paid when due (whether upon acceleration pursuant to Section 6.02 of the Indenture, upon the date set for payment of the Redemption Price pursuant to Section 4 hereof, upon the date set for payment of the Repurchase Price or Fundamental Change Repurchase Price pursuant to Section 5 hereof, upon the Stated Maturity of the Securities or upon the Interest Payment Dates), then in each such case the overdue amount shall, to the extent permitted by law, bear cash interest at the rate of 4.125% per annum, compounded semi-annually, which interest shall accrue from the date such overdue amount was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable in cash on demand but if not so demanded shall be paid quarterly to the Holders on the last day of each quarter. A-5 2. METHOD OF PAYMENT. Except as provided below, the Company shall pay Interest, including Additional Interest, if any, on (i) Global Securities, to DTC in immediately available funds, (ii) any Certificated Security having an aggregate principal amount of $2,000,000 or less, by check mailed to the Holder of such Security and (iii) any Certificated Security having an aggregate principal amount of more than $2,000,000, by wire transfer in immediately available funds if requested by the Holder of any such Security as least five business days prior to the relevant Interest Payment Date. At Stated Maturity, the Company shall pay Interest on Certificated Securities at the Company's office or agency maintained for that purpose, which initially shall be the office or agency of the Trustee located at MAC N9303-120, 608-2nd Avenue South, Minneapolis, MN 55479. Subject to the terms and conditions of the Indenture, the Company shall make payments in cash in respect of Redemption Prices, Repurchase Prices, Fundamental Change Repurchase Prices and at Stated Maturity to Holders who surrender Securities to a Paying Agent to collect such payments in respect of the Securities. The Company shall pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may make such cash payments by check payable in such money. 3. INDENTURE. The Securities are general unsecured obligations of the Company limited to $135,000,000 aggregate principal amount. The Indenture does not limit other indebtedness of the Company, secured or unsecured. 4. REDEMPTION AT THE OPTION OF THE COMPANY. No sinking fund is provided for the Securities. The Securities are redeemable for cash, in whole or in part, on or after February 6, 2012 through and including February 1, 2017, at a redemption price (the "Redemption Price") equal to 100% of the principal amount of those Securities, plus accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on those Securities up to, but not including, the Redemption Date if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days during the period of 30 consecutive Trading Days ending on the last Trading Day is more than 130% of the Conversion Price in effect on such last Trading Day (such last Trading Day being no later than February 1, 2017). The Securities are also redeemable for cash at the option of the Company, in whole or in part, at any time or from time to time on or after February 1, 2017 upon not less than 30 nor more than 60 days' notice by mail for a Redemption Price equal to 100% of the principal amount of those Securities plus accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on those Securities up to, but not including, the Redemption Date. In no event shall any Security be redeemable before February 6, 2012. 5. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER. Subject to the terms and conditions of the Indenture, the Company shall become obligated to repurchase, at the option of the Holder, all or any portion of the Securities held by such Holder on February 1, 2017 and February 1, 2022 in integral multiples of $1,000 at a Repurchase Price equal to 100% of the principal amount of those Securities plus accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on those Securities up to, but not including, the Repurchase Date. To exercise such right, a Holder shall deliver to the Paying Agent a Repurchase Notice containing the information set A-6 forth in the Indenture, at any time from the opening of business on the date that is 25 Business Days prior to such Repurchase Date until the close of business on the second Business Day prior to such Repurchase Date, and shall deliver the Securities to the Paying Agent as set forth in the Indenture. At the option of the Holder and subject to the terms and conditions of the Indenture, the Company shall become obligated to repurchase the Securities held by such Holder after the occurrence of a Fundamental Change for a Fundamental Change Repurchase Price equal to 100% of the principal amount of those Securities plus accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on those Securities up to, but not including, the Fundamental Change Repurchase Date. To exercise such right, a Holder shall deliver to the Paying Agent a Fundamental Change Repurchase Notice containing the information set forth in the Indenture at any time on or prior to the close of business on the second Business Day prior to such Fundamental Change Repurchase Date and shall deliver the Securities to the Paying Agent as set forth in the Indenture. Holders have the right to withdraw any Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, by delivering to the Paying Agent a written notice of withdrawal in accordance with the provisions of the Indenture. If cash sufficient to pay the Repurchase Price or Fundamental Change Repurchase Price, as the case may be, of all Securities or portions thereof to be purchased as of the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, is deposited with the Paying Agent prior to or on the Repurchase Date or the Fundamental Change Repurchase Date, as the case may be, Interest and Additional Interest, if any, shall cease to accrue on such Securities (or portions thereof) on and following such Repurchase Date or Fundamental Change Repurchase Date, and the Holder thereof shall have no other rights as such other than the right to receive the Repurchase Price or Fundamental Change Repurchase Price upon surrender of such Security. 6. NOTICE OF REDEMPTION. Notice of redemption pursuant to Section 4 of this Security shall be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at the Holder's registered address. If money sufficient to pay the Redemption Price of all Securities (or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent prior to or on the Redemption Date, Interest and Additional Interest, if any, shall cease to accrue on such Securities or portions thereof on and following such Redemption Date, and the Holder thereof shall have no other rights as such other than the right to receive the Redemption Price upon surrender of such Security. Securities in denominations larger than $1,000 principal amount may be redeemed in part but only in integral multiples of $1,000 of principal amount. 7. CONVERSION. Subject to the occurrence of certain events and in compliance with the provisions of the Indenture (including, without limitation, the conditions to conversion of this Security set forth in Section 10.01 thereof), a Holder is entitled, at such Holder's option, to convert the Holder's Security (or any portion of the principal amount thereof that is $1,000 or an integral multiple of $1,000), into cash or a combination of cash and fully paid and nonassessable shares of Common Stock at the Conversion Rate in effect at the time of conversion. The Company shall notify Holders of any event triggering the right to convert the Securities as specified in the Indenture. A-7 A Security in respect of which a Holder has delivered a Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, exercising the option of such Holder to require the Company to purchase such Security, may be converted only if such Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, is withdrawn in accordance with the terms of the Indenture. The initial Conversion Rate is 40.3323 shares of Common Stock per $1,000 principal amount, subject to adjustment in certain events described in the Indenture. The Conversion Rate shall not be adjusted for any accrued and unpaid Interest or accrued and unpaid Additional Interest, if any. Upon conversion, no payment shall be made by the Company with respect to accrued and unpaid Interest and accrued and unpaid Additional Interest, if any. Instead, such amount shall be deemed paid by the cash and shares of Common Stock, if any, delivered upon conversion of any Security. In addition, no payment or adjustment shall be made in respect of dividends on the Common Stock, except as set forth in the Indenture. In addition, following certain corporate transactions as set forth in Section 10.01(b) of the Indenture that occur on or prior to February 1, 2017 and that also constitute a Change of Control, a Holder who elects to convert its Securities in connection with such corporate transaction shall be entitled to receive Additional Shares of Common Stock upon conversion. Notwithstanding the previous sentence, in the case of a Public Acquirer Change of Control, the Company may, in lieu of increasing the Conversion Rate by Additional Shares, elect to adjust the Conversion Rate and Conversion Obligation such that from and after the effective date of such Public Acquirer Change of Control, Holders of the Securities shall be entitled to convert their Securities into a number of shares of Public Acquirer Common Stock, as determined pursuant to Section 10.01(d) of the Indenture. To surrender a Security for conversion, a Holder must (1) complete and manually sign the Conversion Notice attached hereto (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent, (2) surrender the Security to the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, (4) if required by Section 10.02(f) of the Indenture, pay Interest and Additional Interest and (5) pay any transfer or similar tax, if required. No fractional shares of Common Stock shall be issued upon conversion of any Security. Instead of any fractional share of Common Stock that would otherwise be issued upon conversion of such Security, the Company shall pay a cash adjustment as provided in the Indenture. If the Company engages in any reclassification of the Common Stock (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value) or is party to a consolidation, merger, binding share exchange or transfer of all or substantially all of its assets, and as a result of any such event the Holders of Common Stock would be entitled to receive Exchange Property for their Common Stock, upon conversion of the Securities after the effective date of such event, the Conversion Obligation and the Conversion Settlement Distribution shall be based on the applicable Conversion Rate and the Exchange Property, in each case in accordance with the Indenture. 8. SUBORDINATION To the extent provided in the Indenture, the Securities and the Guarantees are subordinated to Senior Debt, as defined in the Indenture, of the Company and each Guarantor. The Company and each Guarantor agree, and each Holder of Securities by accepting a Security agrees, to the subordination provisions contained in the Indenture and authorizes the Trustee to give it effect and appoints the Trustee as attorney-in-fact for such purpose. A-8 9. PAYING AGENT, CONVERSION AGENT AND REGISTRAR. Initially, the Trustee shall act as Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent or Registrar without notice, other than notice to the Trustee. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent or Registrar. 10. DENOMINATIONS; TRANSFER; EXCHANGE. The Securities are in fully registered form, without coupons, in denominations of $1,000 of principal amount and integral multiples of $1,000. A Holder may transfer or exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Securities selected for redemption (except, in the case of a Security to be redeemed in part, the portion of the Security not to be redeemed) for a period of 15 days before the mailing of a notice of redemption of Securities to be redeemed or any Securities in respect of which a Repurchase Notice or Fundamental Change Repurchase Notice has been given and not withdrawn (except, in the case of a Security to be purchased in part, the portion of the Security not to be purchased). 11. PERSONS DEEMED OWNERS. The registered Holder of this Security may be treated as the owner of this Security for all purposes. 12. UNCLAIMED MONEY OR SECURITIES. The Trustee and the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, subject to applicable abandoned property law. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person. 13. AMENDMENT; WAIVER. Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Securities may be amended with the written consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities and (ii) certain Events of Defaults may be waived with the written consent of the Holders of a majority in aggregate principal amount of the outstanding Securities. Subject to certain exceptions set forth in the Indenture, without the consent of any Securityholder, the Company and the Trustee may amend the Indenture or the Securities (i) to add guarantees with respect to the Securities or secure the Securities, (ii) to remove any guarantee added to the Securities pursuant to clause (i), unless such guarantee is required pursuant to Section 5.01(a) of the Indenture, (iii) to conform any non-conforming language or defined terms in the terms in the text of this Indenture or the Securities to any provision of the "Description of the Debentures" section of the Offering Memorandum so that such provision in the "Description of the Debentures" section reflects a verbatim recitation of a provision of this Indenture or the Securities, (iv) to add to the covenants or Events of Defaults of the Company for the benefit of the Holders of Securities, (v) to surrender any right or power conferred upon the Company in the Indenture, (vi) to provide for conversion rights of Holders of Securities if any reclassification or change of the Company's Common Stock or any consolidation, merger or sale of all or substantially all of the Company's assets occurs, (vii) to provide for the assumption by a successor Person (and the public A-9 acquirer, if applicable) of the Company's obligations to the Holders of Securities in the case of a merger, consolidation, conveyance, transfer, sale, lease or other disposition as provided under the Indenture and to provide for the assumption by a successor Guarantor Person of a Guarantor's obligations under its Guarantee in the case of a merger or consolidation as provided under the Indenture, (viii) to provide for uncertificated Securities in addition to or in place of Certificated Securities; provided, however, that uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that uncertificated Securities are described in Section 163(f)(2)(B) of the Code, (ix) to change the Conversion Rate in accordance with the Indenture; provided, however, that any increase in the Conversion Rate other than pursuant to Article 10 shall not adversely affect the interests of the Holders of Securities (after taking into account U.S. federal income tax and other consequences of such increase), (x) to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA, (xi) to cure any ambiguity or to correct or supplement any provision in the Indenture which may be a mistake or inconsistent with any other provision in the Indenture or which is otherwise defective (xii) make other changes to the Indenture or forms or terms of the Securities, provided that no such change individually or in the aggregate with all other such changes have or will have a material adverse effect on the interests of the Holders of Securities, (xiii) to establish the form of Securities if issued in definitive form or issue any Securities pursuant to the over-allotment option pursuant to the Purchase Agreement, (xiv) to evidence and provide for the acceptance of the appointment under the Indenture of a successor Trustee and (xv) irrevocably elect to pay the principal of the Securities in cash or to pay all of the Conversion Obligation in shares of Common Stock. 14. DEFAULTS AND REMEDIES. If any Event of Default with respect to Securities shall occur and be continuing, the principal amount of the Securities and any accrued and unpaid Interest and accrued and unpaid Additional Interest, if any, on all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. 15. TRUSTEE DEALINGS WITH THE COMPANY. Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. 16. CALCULATIONS IN RESPECT OF SECURITIES. The Company or its agents shall be responsible for making all calculations called for under the Securities including, but not limited to, determination of the market prices for the Securities and of the Common Stock and the amount of Additional Interest, if any, accrued on the Securities. Any calculations made in good faith and without manifest error shall be final and binding on Holders of the Securities. The Company or its agents shall be required to deliver to the Trustee a schedule of its calculations and the Trustee shall be entitled to conclusively rely upon the accuracy of such calculations without independent verification. 17. NO RECOURSE AGAINST OTHERS. A director, officer, employee or shareholder, as such, of the Company or any Guarantor shall not have any liability for any obligations of the Company or the Guarantors under the Securities, the Indenture or the Guarantees or for any claim based on, in respect of or by reason of such obligations or A-10 their creation. By accepting a Security, each Securityholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. 18. AUTHENTICATION. This Security shall not be valid until an authorized signatory of the Trustee manually signs the Trustee's Certificate of Authentication on the other side of this Security. 19. ABBREVIATIONS. Customary abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). 20. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF. 21. COPY OF INDENTURE. The Company shall furnish to any Securityholder upon written request and without charge a copy of the Indenture, which has in it the text of this Security in larger type. Requests may be made to: Invacare Corporation One Invacare Way Elyria, Ohio 44036 Attention: General Counsel Facsimile No.: (440) 329-6975 A-11
ASSIGNMENT FORM CONVERSION NOTICE - --------------- ---------------------------------------- _____________________________________ ________________________________________ To assign this Security, fill in the To convert this Security, check the box form below: _____________________________________ ________________________________________ I or we assign and transfer this To convert only part of this Security, Security to state the principal amount to be converted (which must be $1,000 or an integral multiple of $1,000): _____________________________________ (Insert assignee's soc. sec. or tax If you want the stock certificate made ID no.) out in another person's name fill in the form below: _____________________________________ ________________________________________ _____________________________________ ________________________________________ _____________________________________ (Insert the other person's soc. sec. Tax ID no.) (Print or type assignee's name, address and zip code) and irrevocably appoint ________________________________________ ___________________ agent to transfer ________________________________________ this Security on the books of the Company. The agent may substitute ________________________________________ another to act for him. ________________________________________ ________________________________________ (Print or type other person's name, address and zip code)
Date: Your Signature: ------------------------------- ------------------------ - ------------------------------------- (Sign exactly as your name appears on the other side of this Security) Signature Guaranteed - ------------------------------------- Participant in a Recognized Signature Guarantee Medallion Program By: --------------------------------- Authorized Signatory A-12 SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY Initial Principal Amount of Global Security: ONE HUNDRED THIRTY FIVE MILLION Dollars ($135,000,000).
Amount of Amount of Principal Amount Increase in Decrease in of Global Security Notation by Principal Amount Principal Amount After Increase Registrar or Date of Global Security of Global Security or Decrease Security Custodian - ---- ------------------ ------------------ ------------------ ------------------
A-13 EXHIBIT B [FORM OF FACE OF CERTIFICATED SECURITY] [THIS DEBENTURE AND ANY COMMON SHARES ISSUABLE UPON THE CONVERSION OF THIS DEBENTURE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS DEBENTURE IS HEREBY NOTIFIED THAT THE SELLER OF THIS DEBENTURE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THIS DEBENTURE AND ANY COMMON SHARES ISSUABLE UPON THE CONVERSION OF THIS DEBENTURE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a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onvertible Senior Subordinated Debentures Due 2027 CUSIP: 461203AC5 ISSUE DATE: February 12, 2007 Principal Amount: $ 135,000,000 No. ____ INVACARE CORPORATION, an Ohio corporation, promises to pay to __________ or registered assigns, the principal amount of _____________________, on February 1, 2027. Interest Rate: 4.125% per year. Interest Payment Dates: February 1 and August 1 of each year, commencing August 1, 2007. Interest Record Date: January 15 and July 15 of each year. Reference is hereby made to the further provisions of this Security set forth on the reverse side of this Security, which further provisions shall for all purposes have the same effect as if set forth at this place. B-2 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. Dated: ------------------------------ INVACARE CORPORATION By: ------------------------------------ Title: --------------------------------- TRUSTEE'S CERTIFICATE OF AUTHENTICATION __________________________, WELLS FARGO BANK, N.A., as Trustee, certifies that this is one of the Securities referred to in the within-mentioned Indenture. By ---------------------------------- Authorized Signatory Dated: ------------------------------ [FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A.] B-3 EXHIBIT C INVACARE CORPORATION NOTICE OF REDEMPTION [DATE] To the Holders of the 4.125% Convertible Senior Subordinated Debentures Due 2027 issued by Invacare Corporation: Invacare Corporation (the "Issuer") by this written notice hereby exercises, pursuant to Section 3.01 of that certain Indenture (the "Indenture"), dated as of February 12, 2007, among the Issuer, the Guarantors party thereto and Wells Fargo Bank, N.A., its right to redeem $[_________] of its 4.125% Convertible Senior Subordinated Debentures Due 2027 (the "Securities"). All capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture. 1. Redemption Date: [_______ _, ____] 2. Redemption Price: $[______] 3. Conversion Rate: Each $1,000 principal amount of the Securities is convertible at your option into cash and common stock, if any, at a rate of [insert number of shares] shares of the Issuer's common stock, without par value (the "Common Stock"), subject to adjustment, during the period described below. 4. Paying Agent and Conversion Agent: [NAME] [ADDRESS] 5. The Securities called for redemption may be converted at your option at any time from the date of this Notice of Redemption until 5:00 p.m. on the second Business Day immediately prior to the Redemption Date set forth above. 6. The Securities called for redemption and not converted at your election prior to 5:00 p.m. on the second Business Day immediately prior to Redemption Date set forth above shall be redeemed on the Redemption Date. 7. If you elect to convert your Securities, you must satisfy the requirements for conversion set forth in your Securities. 8. Your Securities called for redemption must be surrendered by you (by effecting book entry transfer of the Securities or delivering Certificated Securities, together with necessary endorsements, as the case may be) to [Name of Paying Agent] at [insert address] in order for you to collect the Redemption Price. 9. [The Securities bearing the following Certificate Number(s) in the principal amount set forth below opposite such Certificate Number(s) are being redeemed:
Certificate Number(s) Principal Amount] - --------------------- -----------------
10. Unless the Issuer defaults in making the payment of the Redemption Price owed to you, Interest and Additional Interest, if any, on your Securities called for redemption shall cease to accrue on and after the Redemption Date. 11. CUSIP Number: [_______] INVACARE CORPORATION C-1 EXHIBIT D INVACARE CORPORATION NOTICE OF REPURCHASE [DATE] To the Beneficial Owners of the 4.125% Convertible Senior Subordinated Debentures Due 2027 (the "Securities") issued by Invacare Corporation: Invacare Corporation (the "Issuer") by this written notice hereby notifies you, pursuant to Section 3.07 of that certain Indenture (the "Indenture"), dated as of February 12, 2007, among the Issuer, the Guarantors party thereto and Wells Fargo Bank, N.A., that you may request the Issuer to repurchase your Securities by delivery of a Repurchase Notice. Included herewith is the form of Repurchase Notice to be completed by you if you wish to have your Securities repurchased by the Issuer. All capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture. 1. Repurchase Date: [___________ __, ____] 2. Repurchase Price: [$__________] 3. Conversion Rate: To the extent described in Item 5 below, each $1,000 principal amount of the Securities is convertible into [insert number of shares] shares of the Issuer's common stock, without par value (the "Common Stock"), subject to adjustment. 4. Paying Agent and Conversion Agent: [NAME] [ADDRESS] 5. The Securities as to which you have delivered a Repurchase Notice to the Paying Agent may be converted if they are otherwise convertible pursuant to Article 10 of the Indenture and the terms of the Securities only if you withdraw such Repurchase Notice pursuant to the terms of the Indenture. You may be entitled to have your Securities converted into cash or a combination of cash and shares of the Issuer's common stock, if any: (i) during any fiscal quarter of the Issuer commencing after the fiscal quarter ending March 31, 2007 (and only during such quarter), if the last reported sale price (as defined in the Indenture) of the Issuer's common stock for at least 20 trading days in the 30 trading-day period ending on the last trading day of the preceding fiscal quarter was more than 130% of the conversion price (as defined in the Indenture) on such trading day; (ii) during the five business days immediately after any five consecutive trading-day period in which the trading price (as defined in the Indenture) per $1,000 principal amount of the Securities for each day of that period was less than 98% of the product of the last reported sale price of the Common Stock and the conversion rate (as defined in the Indenture) of the Securities on each such day; (iii) if the Issuer has called the Securities for redemption; (iv) on or after November 1, 2026; or (v) upon the occurrence of certain specified corporate transactions described in the Indenture. 6. The Securities as to which you have delivered a Repurchase Notice must be surrendered by you (by effecting book entry transfer of the Securities or delivering Certificated Securities, together with D-1 necessary endorsements, as the case may be) to [Name of Paying Agent] at [insert address] in order for you to collect the Repurchase Price. 7. The Repurchase Price for the Securities as to which you have delivered a Repurchase Notice and not withdrawn such Repurchase Notice shall be paid promptly following the later of the business day immediately following such Repurchase Date and the date you deliver such Securities to [Name of Paying Agent]. 8. In order to exercise your option to have the Issuer repurchase your Securities, you must deliver the Repurchase Notice, duly completed by you with the information required by such Repurchase Notice (as specified in Section 3.07 of the Indenture) and deliver such Repurchase Notice to the Paying Agent at any time from 9:00 a.m. on [insert day that is 25 Business Days prior to Repurchase Date] until 5:00 p.m. on the [insert day that is the second Business Day prior to the Repurchase Date]. 9. In order to withdraw any Repurchase Notice previously delivered by you to the Paying Agent, you must deliver to the Paying Agent, by 5:00 p.m. on [insert day that is the Repurchase Date], a written notice of withdrawal specifying (i) the certificate number, if any, of the Securities in respect of which such notice of withdrawal is being submitted, (ii) the principal amount of the Securities in respect of which such notice of withdrawal is being submitted, and (iii) if you are not withdrawing your Repurchase Notice for all of your Securities, the principal amount of the Securities which still remain subject to the original Repurchase Notice. 10. Unless the Issuer defaults in making the payment of the Repurchase Price owed to you, Interest and Additional Interest, if any, on your Securities as to which you have delivered a Repurchase Notice shall cease to accrue on and after the Repurchase Date. 11. CUSIP Number: [______] INVACARE CORPORATION D-2 EXHIBIT E INVACARE CORPORATION NOTICE OF OCCURRENCE OF FUNDAMENTAL CHANGE [DATE] To the Holders of the 4.125% Convertible Senior Subordinated Debentures Due 2027 (the "Securities") issued by Invacare Corporation: Invacare Corporation (the "Issuer") by this written notice hereby notifies you, pursuant to Section 3.08 of that certain Indenture (the "Indenture"), dated as of February 12, 2007, among the Issuer, the Guarantors party thereto and Wells Fargo Bank, N.A., that a Fundamental Change (as such term and other capitalized terms used herein and not otherwise defined herein is defined in the Indenture) as described below has occurred. Included herewith is the form of Fundamental Change Repurchase Notice to be completed by you if you wish to have your Securities repurchased by the Issuer. 1. Fundamental Change: [Insert brief description of the Fundamental Change and the date of the occurrence thereof]. 2. Date by which Fundamental Change Repurchase Notice must be delivered by you to Paying Agent in order to have your Securities repurchased: 3. Fundamental Change Repurchase Date: [_____________ __, ____] 4. Fundamental Change Repurchase Price: [$______] 5. Paying Agent and Conversion Agent: [NAME] [ADDRESS] 6. Conversion Rate: To the extent described in Item 7 below, each $1,000 principal amount of the Securities is convertible into [insert number of shares] shares of the Issuer's common stock, without par value (the "Common Stock"), subject to adjustment. 7. The Securities as to which you have delivered a Fundamental Change Repurchase Notice to the Paying Agent may be converted if they are otherwise convertible pursuant to Article 10 of the Indenture and the terms of the Securities only if you withdraw such Fundamental Change Repurchase Notice pursuant to the terms of the Indenture. You may be entitled to have your Securities converted into cash or a combination of cash and shares of the Issuer's common stock: (i) during any fiscal quarter of the Issuer commencing after the fiscal quarter ending March 31, 2007 (and only during such fiscal quarter), if the last reported sale price (as defined in the Indenture) of the Issuer's common stock for at least 20 trading days in the 30 trading-day period ending on the last trading day of the preceding fiscal quarter was more than 130% of the conversion price (as defined in the Indenture) on such last trading day; (ii) during the five business days immediately after any five consecutive trading-day period in which the trading price (as defined in the Indenture) per $1,000 principal amount of the Securities for each day of that period was less than 98% of the product of the last reported sale price of the Common Stock and the conversion rate (as defined in the Indenture) of the Securities on each such day; (iii) if the Issuer has called the Securities for redemption; E-1 (iv) on or after November 1, 2026; or (v) upon the occurrence of certain specified corporate transactions described in the Indenture. 8. The Securities as to which you have delivered a Fundamental Change Repurchase Notice must be surrendered by you (by effecting book entry transfer of the Securities or delivering Certificated Securities, together with necessary endorsements, as the case may be) to [Name of Paying Agent] at [insert address] in order for you to collect the Fundamental Change Repurchase Price. 9. The Fundamental Change Repurchase Price for the Securities as to which you have delivered a Fundamental Change Repurchase Notice and not withdrawn such Notice shall be paid promptly following the later of the Business Day immediately following such Fundamental Change Repurchase Date and the date you deliver such Securities to [Name of Paying Agent]. 10. In order to have the Issuer repurchase your Securities, you must deliver the Fundamental Change Repurchase Notice, duly completed by you with the information required by such Fundamental Change Repurchase Notice (as specified in Section 3.08 of the Indenture) and deliver such Fundamental Change Repurchase Notice to the Paying Agent at any time from 9:00 a.m. on the date of the occurrence of the Change of Control until 5:00 p.m. on the second Business Day prior to the Fundamental Change Repurchase Date. 11. In order to withdraw any Fundamental Change Repurchase Notice previously delivered by you to the Paying Agent, you must deliver to the Paying Agent, by 5:00 p.m. on the Fundamental Change Repurchase Date, a written notice of withdrawal specifying (i) the certificate number, if any, of the Securities in respect of which such notice of withdrawal is being submitted, (ii) the principal amount of the Securities in respect of which such notice of withdrawal is being submitted, and (iii) if you are not withdrawing your Fundamental Change Repurchase Notice for all of your Securities, the principal amount of the Securities which still remain subject to the original Fundamental Change Repurchase Notice. 12. Unless the Issuer defaults in making the payment of the Fundamental Change Repurchase Price owed to you, Interest and Additional Interest, if any, on your Securities as to which you have delivered a Fundamental Change Repurchase Notice shall cease to accrue on and after the Fundamental Change Repurchase Date. 13. CUSIP Number: [______] INVACARE CORPORATION E-2 EXHIBIT F FORM OF NOTATION OF GUARANTEE For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of February 12, 2007 (the "Indenture") among Invacare Corporation, (the "Company"), the Guarantors party thereto and Wells Fargo Bank, N.A., as trustee (the "Trustee"), (a) the due and punctual payment of the principal of, premium and Additional Interest, if any, and interest on, the Securities, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Securities, if any, if lawful, and the due and punctual performance of all other obligations of the Company under the Indenture to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. This Guarantee is subordinated to the Senior Debt of the relevant Guarantor to the extent described in the Indenture. The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article 12 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Security, by accepting the same, (a) agrees to and shall be bound by such provisions (b) authorizes and directs the Trustee, on behalf of such Holder, to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such purpose. This Guarantee may be released in accordance with the Indenture without any further act by any Holder. Capitalized terms used but not defined herein have the meanings given to them in the Indenture. [NAME OF GUARANTOR(S)] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- F-1 EXHIBIT G FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of ____________________________________, 20_____, among ___________________ (the "Guaranteeing Subsidiary"), a subsidiary of Invacare Corporation (or its permitted successor), an Ohio corporation (the "Company"), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wells Fargo Bank, N.A., as trustee under the Indenture referred to below (the "Trustee"). WITNESSETH WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of February 12, 2007 providing for the issuance of 4.125% Convertible Senior Subordinated Debentures due February 1, 2027 (the "Securities"); WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's Obligations under the Securities and the Indenture on the terms and conditions set forth herein (the "Guarantee"); and WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the other Guarantors, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: 1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. 2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Guarantee and in the Indenture, including but not limited to Article 12 thereof. 3. NO RECOURSE AGAINST OTHERS. A director, officer, employee or shareholders, as such, of the Guaranteeing Subsidiary shall not have any liability for any obligations of the Company or the Guarantors under the Securities, this Indenture or the Guarantees or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Securityholder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities. 4. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF. 5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof. G-1 7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary, the Company and the other Guarantors. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written. Dated: _______________, 20___ [GUARANTEEING SUBSIDIARY] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- INVACARE CORPORATION By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- [EXISTING GUARANTORS] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- WELLS FARGO BANK, N.A., as Trustee By: ------------------------------------ Authorized Signatory G-2 SCHEDULE I The following table sets forth the Stock Prices and the number of Additional Shares per $1,000 principal amount of Securities. STOCK PRICE Effective Date.... $20.24 $22.00 $24.00 $26.00 $28.00 $30.00 $35.00 $40.00 $50.00 $60.00 $70.00 $80.00 $90.00 $100.00 12-Feb-07.. 9.07 7.91 6.86 6.03 5.36 4.80 3.78 3.09 2.22 1.69 1.33 1.06 0.86 0.71 1-Feb-08... 8.65 7.44 6.36 5.52 4.85 4.30 3.33 2.69 1.91 1.45 1.14 0.92 0.75 0.62 1-Feb-09... 8.22 6.94 5.81 4.94 4.26 3.72 2.78 2.20 1.54 1.17 0.93 0.75 0.61 0.51 1-Feb-10... 7.82 6.43 5.21 4.28 3.58 3.03 2.13 1.62 1.10 0.83 0.66 0.54 0.45 0.37 1-Feb-11... 7.58 6.01 4.62 3.57 2.78 2.19 1.31 0.90 0.58 0.44 0.36 0.29 0.24 0.20 1-Feb-12... 7.68 5.94 4.36 3.07 2.02 1.18 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1-Feb-13... 7.87 6.05 4.39 3.07 1.99 1.14 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1-Feb-14... 8.02 6.08 4.35 2.98 1.90 1.05 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1-Feb-15... 8.14 6.04 4.23 2.86 1.80 0.98 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1-Feb-16... 8.13 5.67 3.71 2.34 1.39 0.71 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1-Feb-17... 9.07 5.12 1.33 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

~~This Cross-Reference Table is not part of the Indenture.~~ EX-4.2 3 l24661aexv4w2.txt EX-4.2 EXHIBIT 4.2 EXECUTION VERSION INVACARE CORPORATION AND EACH OF THE GUARANTORS PARTY HEREIN 9 3/4% SENIOR NOTES DUE 2015 ---------- INDENTURE Dated as of February 12, 2007 ---------- Wells Fargo Bank, N.A. Trustee CROSS-REFERENCE TABLE*
TRUST INDENTURE INDENTURE ACT SECTION SECTION - --------------- -------------- 310(a)(1)...................................................... 7.10 (a)(2)...................................................... 7.10 (a)(3)...................................................... N.A. (a)(4)...................................................... N.A. (a)(5)...................................................... 7.10 (b)......................................................... 7.10 (c)......................................................... N.A. 311(a)......................................................... 7.11 (b)......................................................... 7.11 (c)......................................................... N.A. 312(a)......................................................... 2.06 (b)......................................................... 12.03 (c)......................................................... 12.03 313(a)......................................................... 7.06(a) (b)(1)...................................................... N.A. (b)(2)...................................................... 7.06(a) (c)......................................................... 7.06(a), 12.02 (d)......................................................... 7.06(b) 314(a)......................................................... N.A (a)(4)...................................................... 12.05(a) (b)......................................................... N.A. (c)(1)...................................................... 12.04 (c)(2)...................................................... 12.04 (c)(3)...................................................... N.A. (d)......................................................... N.A. (e)......................................................... 12.05(a) (f)......................................................... N.A. 315(a)......................................................... N.A. (b)......................................................... N.A. (c)......................................................... N.A. (d)......................................................... N.A. (e)......................................................... N.A. 316(a)(last sentence).......................................... N.A. (a)(1)(A)................................................... N.A. (a)(1)(B)................................................... 6.04 (a)(2)...................................................... N.A. (b)......................................................... N.A. (c)......................................................... 12.14(d) 317(a)(1)...................................................... N.A. (a)(2)...................................................... N.A. (b)......................................................... N.A. 318(a)......................................................... N.A. (b)......................................................... N.A. (c)......................................................... 12.10
N.A. means not applicable. * This Cross-Reference Table is not part of the Indenture. i TABLE OF CONTENTS CROSS-REFERENCE TABLE...................................................... i ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE................................. 1 Section 1.01. Definitions................................................. 1 Section 1.02. Other Definitions........................................... 26 Section 1.03. Incorporation by Reference of Trust Indenture Act........... 27 Section 1.04. Rules of Construction....................................... 27 ARTICLE TWO THE NOTES.................................................................. 27 Section 2.01. Form and Dating............................................. 27 Section 2.02. Execution and Authentication................................ 29 Section 2.03. Methods of Receiving Payments on the Notes.................. 29 Section 2.04. Registrar and Paying Agent.................................. 30 Section 2.05. Paying Agent to Hold Money in Trust......................... 30 Section 2.06. Holder Lists................................................ 30 Section 2.07. Transfer and Exchange....................................... 30 Section 2.08. Replacement Notes........................................... 43 Section 2.09. Outstanding Notes........................................... 43 Section 2.10. Treasury Notes.............................................. 44 Section 2.11. Temporary Notes............................................. 44 Section 2.12. Cancellation................................................ 44 Section 2.13. Defaulted Interest.......................................... 44 Section 2.14. CUSIP Numbers............................................... 45 Section 2.15. Additional Interest......................................... 45 Section 2.16. Issuance of Additional Notes................................ 45 ARTICLE THREE REDEMPTION AND PREPAYMENT.................................................. 46 Section 3.01. Notices to Trustee.......................................... 46 Section 3.02. Selection of Notes to Be Redeemed........................... 46 Section 3.03. Notice of Redemption........................................ 46 Section 3.04. Effect of Notice of Redemption.............................. 47 Section 3.05. Deposit of Redemption Price................................. 47 Section 3.06. Notes Redeemed in Part...................................... 47 Section 3.07. Optional Redemption......................................... 48 Section 3.08. Mandatory Redemption........................................ 48 Section 3.09. Application of Trust Money.................................. 48 ARTICLE FOUR COVENANTS.................................................................. 49

ii Section 4.01. Payment of Notes............................................ 49 Section 4.02. Maintenance of Office or Agency............................. 49 Section 4.03. Reports..................................................... 49 Section 4.04. Compliance Certificate...................................... 50 Section 4.05. Taxes....................................................... 51 Section 4.06. Stay, Extension and Usury Laws.............................. 51 Section 4.07. Incurrence of Indebtedness and Issuance of Disqualified Stock....................................................... 51 Section 4.08. Restricted Payments......................................... 54 Section 4.09. Transactions with Affiliates................................ 58 Section 4.10. Liens....................................................... 59 Section 4.11. Asset Sales................................................. 60 Section 4.12. Issuances of Guarantees by Restricted Subsidiaries.......... 63 Section 4.13. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries..................................... 63 Section 4.14. Sale Leaseback Transactions................................. 65 Section 4.15. Lines of Business........................................... 65 Section 4.16. Unrestricted Subsidiaries................................... 65 Section 4.17. Payments for Consent........................................ 67 Section 4.18. Offer to Repurchase upon a Change of Control................ 67 Section 4.19. Corporate Existence......................................... 69 ARTICLE FIVE SUCCESSORS................................................................. 69 Section 5.01. Consolidation, Merger and Sale of Assets.................... 69 ARTICLE SIX DEFAULTS AND REMEDIES...................................................... 71 Section 6.01. Events of Default........................................... 71 Section 6.02. Acceleration................................................ 72 Section 6.03. Other Remedies.............................................. 73 Section 6.04. Waiver of Past Defaults..................................... 74 Section 6.05. Control by Majority......................................... 74 Section 6.06. Limitation on Suits......................................... 74 Section 6.07. Rights of Holders of Notes to Receive Payment............... 75 Section 6.08. Collection Suit by Trustee.................................. 75 Section 6.09. Trustee May File Proofs of Claim............................ 75 Section 6.10. Priorities.................................................. 75 Section 6.11. Undertaking for Costs....................................... 76 ARTICLE SEVEN TRUSTEE.................................................................... 76 Section 7.01. Duties of Trustee........................................... 76 Section 7.02. Certain Rights of Trustee................................... 77 Section 7.03. Individual Rights of Trustee................................ 79

iii Section 7.04. Trustee's Disclaimer........................................ 79 Section 7.05. Notice of Default........................................... 79 Section 7.06. Reports by Trustee to Holders of the Notes.................. 79 Section 7.07. Compensation and Indemnity.................................. 80 Section 7.08. Replacement of Trustee...................................... 80 Section 7.09. Successor Trustee by Merger, Etc............................ 81 Section 7.10. Eligibility; Disqualification............................... 81 Section 7.11. Preferential Collection of Claims Against Company........... 82 ARTICLE EIGHT DEFEASANCE AND COVENANT DEFEASANCE......................................... 82 Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.... 82 Section 8.02. Legal Defeasance and Discharge.............................. 82 Section 8.03. Covenant Defeasance......................................... 82 Section 8.04. Conditions to Legal Defeasance or Covenant Defeasance....... 83 Section 8.05. Deposited Money and U.S..................................... 84 Section 8.06. Repayment to the Company.................................... 85 Section 8.07. Reinstatement............................................... 85 ARTICLE NINE AMENDMENT, SUPPLEMENT AND WAIVER........................................... 85 Section 9.01. Without Consent of Holders of Notes......................... 85 Section 9.02. With Consent of Holders of Notes............................ 86 Section 9.03. Compliance with Trust Indenture Act......................... 88 Section 9.04. Revocation and Effect of Consents........................... 88 Section 9.05. Notation on or Exchange of Notes............................ 88 Section 9.06. Trustee to Sign Amendments, Etc............................. 88 ARTICLE TEN GUARANTEES................................................................. 89 Section 10.01. Guarantee................................................... 89 Section 10.02. Guarantee is in Addition to Other Security.................. 91 Section 10.03. Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies................................... 92 Section 10.04. Limitation on Guarantor Liability........................... 92 Section 10.05. Execution and Delivery of Guarantee......................... 92 Section 10.06. Releases of Guarantors...................................... 93 ARTICLE ELEVEN SATISFACTION AND DISCHARGE................................................. 93 Section 11.01. Satisfaction and Discharge.................................. 93 Section 11.02. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions............... 94 Section 11.03. Repayment to the Company.................................... 94

iv ARTICLE TWELVE MISCELLANEOUS.............................................................. 95 Section 12.01. No Adverse Interpretation of Other Agreements............... 95 Section 12.02. Notices..................................................... 95 Section 12.03. Communication by Holders with Other Holders................. 96 Section 12.04. Certificate and Opinion as to Conditions Precedent.......... 96 Section 12.05. Statements Required in Certificate or Opinion............... 96 Section 12.06. Rules by Trustee, Registrar and Agents...................... 97 Section 12.07. No Recourse Against Others.................................. 97 Section 12.08. Governing Law............................................... 97 Section 12.09. Consent to Jurisdiction..................................... 97 Section 12.10. Trust Indenture Act Controls................................ 97 Section 12.11. Successors.................................................. 98 Section 12.12. Separability Clause......................................... 98 Section 12.13. Multiple Originals.......................................... 98 Section 12.14. Acts of Holders............................................. 98 Section 12.15. Benefit of Indenture........................................ 99 Section 12.16. Table of Contents, Headings, Etc............................ 99 Section 12.17. Legal Holidays.............................................. 99

Exhibits: Exhibit A1 FORM OF NOTE Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE Exhibit B FORM OF CERTIFICATE OF TRANSFER Exhibit C FORM OF CERTIFICATE OF EXCHANGE Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR Exhibit E FORM OF NOTATION OF GUARANTEE Exhibit F FORM OF GUARANTOR SUPPLEMENTAL INDENTURE TO BE DELIVERED BY GUARANTORS Exhibit G FORM OF INTERCOMPANY NOTE v INDENTURE (this "Indenture"), dated as of February 12, 2007, among Invacare Corporation, an Ohio corporation (the "Company"), the Initial Guarantors (as defined herein) named on Annex A hereto and Wells Fargo Bank, N.A., as trustee (the "Trustee"). The Company, the Initial Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined below) of the 9 3/4% Senior Notes due 2015 (the "Initial Notes" and, together with any Exchange Notes and Additional Notes, each as defined herein, the "Notes"): ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01. Definitions. "144A Global Note" means a global note substantially in the form of Exhibit A1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that shall be issued in a denomination equal to the outstanding principal amount at maturity of the Notes sold in reliance on Rule 144A. "Acquired Debt" means Indebtedness of a Person (1) existing at the time such Person becomes a Restricted Subsidiary or (2) assumed in connection with the acquisition of assets from such Person, in each case, other than Indebtedness incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary or such acquisition, as the case may be. Acquired Debt shall be deemed to be incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Restricted Subsidiary, as the case may be. For the avoidance of doubt, any Indebtedness under (1) or (2) above that is concurrently extinguished with the underlying transaction will not be Acquired Debt. "Additional Assets" means (i) any assets or property (other than cash, Cash Equivalents or securities) used in the Permitted Business or any business ancillary thereto, (ii) Investments in any other Person engaged in the Permitted Business or any business ancillary thereto (including the acquisition from third parties of Capital Stock of such Person) as a result of which such other Person becomes a Restricted Subsidiary, (iii) the acquisition from third parties of Capital Stock of a Restricted Subsidiary, (iv) Permitted Business Investments or (v) capital expenditures of the Company or any Restricted Subsidiary in the Company or any Restricted Subsidiary. "Additional Interest" means any additional interest payable pursuant to a Registration Rights Agreement. "Additional Notes" means any further Notes (other than the Initial Notes issued on the date of this Indenture) issued under this Indenture in accordance with the terms of this Indenture, including Sections 2.01(e), 2.02, 2.16 and 4.07 hereof, as part of the same series as the Initial Notes issued on the date hereof, ranking equally with those Initial Notes and having identical terms and conditions to the Initial Notes (in all respects other than (a) the date of issuance, (b) the issue price, (c) rights under a related Registration Rights Agreement, if any, (d) at the option of the Company, as to the payment of interest accruing prior to the issue date of such Additional Notes, and (e) the first payment of interest following the issue date of such Additional Notes), subject to compliance with Article Four hereof. The Initial Notes, any Additional Notes subsequently issued under this Indenture and all Exchange Notes issued in exchange therefor shall be treated as a single class for all purposes under this Indenture, including, without limitation, directions, waivers, amendments, consents, redemptions and offers to purchase. "Affiliate" means, with respect to any specified Person: (1) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person; (2) any other Person that owns, directly or indirectly, 10% or more of any class or series of such specified Person's (or any of such Person's direct or indirect parent's) Capital Stock or any officer or director of any such specified Person or other Person or, with respect to any natural Person, any person having a relationship with such Person by blood, marriage or adoption not more remote than first cousin; or (3) any other Person 10% or more of the Voting Stock of which is beneficially owned or held directly or indirectly by such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agent" means any Registrar, Paying Agent or co-registrar. "Applicable Premium" means, with respect to a note at any redemption date, the greater of (i) 1.0% of the principal amount of such note and (ii) the excess of (A) the present value at such redemption date of (1) the redemption price of such note on February 15, 2011 (such redemption price being that described in Section 3.07(a)) plus (2) all required remaining scheduled interest payments due on such note through and including February 15, 2011 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Applicable Treasury Rate plus 0.50%, over (B) the principal amount of such note on such redemption date, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate; provided that such calculation shall not be a duty or obligation of the applicable Trustee. "Applicable Procedures" means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange. "Applicable Treasury Rate" means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to February 15, 2011; provided, however that if the period from the redemption date to February 15, 2011, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. "Asset Sale" means (1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Company or any of its Restricted Subsidiaries (each referred to in this definition as a "disposition"); or (2) the issuance or sale of equity interests of any Restricted Subsidiary (other than Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.07), whether in a single transaction or a series of related transactions; in each case, other than: (a) any disposition of Cash Equivalents, hedging contracts, financial instruments or obsolete or worn-out equipment in the ordinary course of business or disposition of assets subject to a casualty loss or any disposition of inventory or goods (or other assets) held for sale in the ordinary course of business; (b) the disposition of all or substantially all of the assets of the Company governed by, and in a manner permitted pursuant to, Section 5.01; (c) the making of any Restricted Payment or Permitted Investment that is permitted to be -2- made, and is made, under Section 4.08; (d) any disposition of assets or issuance or sale of equity interests of the Company or any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than $5.0 million; (e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Company to the Company or by the Company or a Restricted Subsidiary of the Company to another Restricted Subsidiary of the Company; (f) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986 or comparable law or regulation, any exchange of like property (excluding any boot thereon) for use in a Permitted Business; (g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business; (h) any issuance or sale of equity interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (i) foreclosures on assets; (j) sales of Receivables Assets and related assets of the type specified in the definition of "Qualified Receivables Transaction" to a Receivables Subsidiary for the fair market value thereof in a Qualified Receivables Transaction in the ordinary course of business; (k) the creation of Liens to the extent permitted under Section 4.10; and (l) the surrender or waiver of any contract rights. "Attributable Indebtedness" in respect of a Sale Leaseback Transaction means, at the time of determination, the present value (discounted at the rate of interest implicit in such transaction, determined in accordance with GAAP) of the obligation of the lessee for net rental payments during the remaining term of the lease included in such Sale Leaseback Transaction (including any period for which such lease has been extended or may, at the option of the lessor, be extended). "Bankruptcy Law" means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States federal or state law or foreign law relating to bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law. "Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial ownership of all such shares that such "person" has the right to acquire, whether such right is exercisable immediately or only after the passage of time. The term "Beneficial Ownership" shall have a corresponding meaning. "Board of Directors" means, with respect to any Person, the board of directors, management committee or other equivalent management entity of such Person or any committee thereof duly authorized to act on behalf of such board or, in the case of a Person that is a partnership that has no such management entity, one or more general partners of such Person. "Board Resolution" means, with respect to a Board of Directors, a copy of a resolution certified by the Secretary or an Assistant Secretary of the Person or, in the case of a Person that is a partnership that has no such officers, the Secretary or an Assistant Secretary of a general partner of such Person, to have been duly adopted by such Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Broker-Dealer" has the meaning set forth in the Registration Rights Agreement. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in both New York and the city in which the Corporate Trust Office of the Trustee is located (which shall be in Minneapolis, Minnesota as of the Issue Date) are authorized or obligated by law or executive order to close. -3- "Capital Lease Obligation" of any Person means any obligation of such Person and its Restricted Subsidiaries on a Consolidated basis under any capital lease of (or other agreement conveying the right to use) real or personal property which, in accordance with GAAP, is required to be recorded as a capitalized lease obligation. "Capital Stock" of any Person means any and all shares, units, interests, participations, rights in or other equivalents (however designated) of such Person's capital stock, other equity interests whether now outstanding or issued after the date of this Indenture, partnership interests (whether general or limited), limited liability company interests, any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any Preferred Stock, and any rights (other than debt securities convertible into Capital Stock), warrants or options exchangeable for or convertible into such Capital Stock. "Cash Equivalents" means (1) United States dollars or such local currencies held from time to time in the ordinary course of business; (2) any evidence of Indebtedness issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof, (3) deposits, time deposit accounts, certificates of deposit, eurodollar time deposits, money market deposits or acceptances of any financial institution having capital and surplus in excess of $500 million that is a member of the Federal Reserve System, in the case of U.S. banks, and $100 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks, and whose senior unsecured debt is rated at least "A-2" by S&P, or at least "P-2" by Moody's, (4) commercial paper with a maturity of 365 days or less issued by a corporation (other than an Affiliate or Subsidiary of the Company) organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and rated at least "A-1" by S&P and at least "P1" by Moody's, (5) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States or issued by any agency thereof and backed by the full faith and credit of the United States maturing within 365 days from the date of acquisition, and (6) money market funds which invest substantially all of their assets in securities described in the preceding clauses (1) through (5). "Change of Control" means the occurrence of any of the following events: (1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one transaction or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries, taken as a whole, to any "person" (as that term is used in Section 13(d) of the Exchange Act); (2) the adoption of a plan relating to the liquidation or dissolution of the Company; -4- (3) the consummation of any transaction (including, without limitation, any merger or consolidation) or the acquisition of any Voting Stock of the Company, the result of which is that any "person" (as defined above) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares; (4) the Company consolidates with or merges with or into any Person, or any such Person consolidates with or merges into or with the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where (A) the outstanding Voting Stock of the Company is changed into or exchanged for (1) Voting Stock of the surviving Person which is not Disqualified Stock or (2) cash, securities and other property (other than Capital Stock of the surviving Person) in an amount which could be paid by the Company as a Restricted Payment under Section 4.08 (and such amount shall be treated as a Restricted Payment subject to Section 4.08) and (B) immediately after such transaction, the holders of Voting Stock of the Company immediately before such transaction beneficially own a majority of the Voting Stock of the surviving Person; or (5) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors. "Clearstream" means Clearstream Banking, societe anonyme, Luxembourg. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Securities Act and the Exchange Act, then the body performing such duties at such time. "Company" means Invacare Corporation, an Ohio corporation. "Consolidated Assets" means, with respect to any Person at any date of determination, the aggregate amount of total assets included in such Person's most recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP. "Consolidated EBITDA" means, at any date of determination, an amount equal to Consolidated Net Income (Loss) of the Company and its Restricted Subsidiaries on a consolidated basis for any period plus, (a) the following (without duplication) to the extent deducted in calculating such Consolidated Net Income (Loss): (i) Consolidated Interest Expense, (ii) the provision for federal, state, local and foreign income taxes payable, (iii) depreciation and amortization expense (including, without limitation, the amortization of debt issuance costs), (iv) the rehab reimbursement reserve recorded as of December 31, 2006 in an aggregate amount not to exceed $27.0 million, (v) the non-cash write-down of goodwill and general intangibles with respect to the fiscal quarter ended December 31, 2006, (vi) non-cash compensation charges or other non-cash expenses or charges arising from the grant of or issuance of stock, stock options or other equity-based awards to the directors, officers and employees of the Company and its Restricted Subsidiaries, (vii) make-whole payments with respect to the repayment on the Issue Date of the privately placed notes of the Company and the write-off of bank fees associated with Indebtedness issued prior to January 1, 2007, collectively in an aggregate amount not to exceed $15.0 -5- million, (viii) cash charges relating to anticipated cost savings initiatives implemented during the Company's fiscal year 2007 in an aggregate amount not to exceed $18.0 million and up to an aggregate amount not to exceed $10.0 million during each of the Company's fiscal years 2008 and 2009 of potential cash charges relating to cost savings initiatives implemented during such fiscal year, (ix) other expenses and losses reducing such Consolidated Net Income (Loss) which do not represent a cash item in such period or any future period (in each case of or by the Company and its Restricted Subsidiaries for any such period), and (x) bank or lending fees classified as selling, general and administrative expenses, minus (b) the following to the extent included in calculating such Consolidated Net Income (Loss): (i) federal, state, local and foreign income tax credits and (ii) all non-cash items increasing Consolidated Net Income (Loss) (in each case of or by the Company and its Restricted Subsidiaries for any such period). "Consolidated Interest Coverage Ratio" of any Person means, for any period, the ratio of (a) Consolidated EBITDA to (b) without duplication, the sum of Consolidated Interest Expense for such period and any cash dividends paid on any Disqualified Stock or Preferred Stock of such Person and its Restricted Subsidiaries during such period, in each case after giving pro forma effect (as calculated in accordance with Article 11 of Regulation S-X under the Securities Act or any successor provision) to, without duplication, (1) the incurrence of the Indebtedness giving rise to the need to make such calculation and (if applicable) the application of the net proceeds therefrom, including to refinance other Indebtedness, as if such Indebtedness was incurred, and the application of such proceeds occurred, on the first day of such period; (2) the incurrence, repayment or retirement of any other Indebtedness by the Company and its Restricted Subsidiaries since the first day of such period as if such Indebtedness was incurred, repaid or retired at the beginning of such period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility shall be computed based upon the average daily balance of such Indebtedness during such period); (3) in the case of Acquired Debt or any acquisition occurring at the time of the incurrence of such Indebtedness, the related acquisition, assuming such acquisition had been consummated on the first day of such period; and (4) any acquisition or disposition by the Company and its Restricted Subsidiaries of any company or any business or any assets out of the ordinary course of business, whether by merger, stock purchase or sale or asset purchase or sale, or any related repayment of Indebtedness, in each case since the first day of such period, assuming such acquisition or disposition had been consummated on the first day of such period; provided that (1) in making such computation, the Consolidated Interest Expense attributable to interest on any Indebtedness computed on a pro forma basis and (A) bearing a floating interest rate shall be computed as if the rate in effect on the date of computation had been the applicable rate for the entire period and (B) which was not outstanding during the period for which the computation is being made but which bears, at the option of such Person, a fixed or floating rate -6- of interest, shall be computed by applying at the option of such Person either the fixed or floating rate, and (2) in making such computation, the Consolidated Interest Expense of such Person attributable to interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average balance of such Indebtedness during the applicable period. "Consolidated Interest Expense" of any Person means, without duplication, for any period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, plus (b) all interest paid or payable with respect to discontinued operations, plus (c) the portion of rent expense under Capital Lease Obligations that is treated as interest in accordance with GAAP, in each case of or by the Company and its Restricted Subsidiaries on a consolidated basis for such period, plus (d) the interest expense under any Guaranteed Debt of such Person (to the extent such Guaranteed Debt remains outstanding) and any Restricted Subsidiary to the extent not included under any other clause hereof, whether or not paid by such Person or its Restricted Subsidiaries, plus (e) dividend requirements of the Company with respect to Disqualified Stock and of any Restricted Subsidiary with respect to Preferred Stock (except, in either case, dividends payable solely in shares of Qualified Capital Stock of the Company or such Restricted Subsidiary, as the case may be). "Consolidated Net Income (Loss)" of any Person means, for any period, the Consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period on a Consolidated basis as determined in accordance with GAAP, adjusted, to the extent included in calculating such net income (or loss), by excluding, without duplication, (1) all extraordinary gains or losses (less all fees and expenses relating thereto) net of taxes, (2) the portion of net income (or loss) of such Person and its Restricted Subsidiaries on a Consolidated basis allocable to minority interests in unconsolidated Persons or Unrestricted Subsidiaries to the extent that cash dividends or distributions have not actually been received by such Person or one of its Consolidated Restricted Subsidiaries, (3) any gain or loss, net of taxes, realized upon the termination of any employee pension benefit plan, (4) gains or losses (less all fees and expenses relating thereto), net of taxes, in respect of dispositions of assets other than in the ordinary course of business, -7- (5) the net income of any Restricted Subsidiary to the extent that the declaration of dividends or similar distributions by that Restricted Subsidiary of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, (6) any impairment charge or write-down of non-current assets in each case pursuant to GAAP, (7) any non-cash expenses or charges resulting from stock, stock option or other equity based awards, (8) any cumulative effect of a change in accounting principles, (9) all deferred financing costs written off, and premiums paid, in connection with any early extinguishment of Indebtedness, and (10) any non-cash restructuring charges. "Consolidated Net Tangible Assets" means, with respect to any Person at any date of determination, the aggregate amount of total assets included in such Person's most recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP less applicable reserves reflected in such balance sheet, after deducting the following amounts: (a) all current liabilities reflected in such balance sheet, and (b) all goodwill, trademarks, patents, unamortized debt discounts and expenses and other like intangibles reflected in such balance sheet. "Consolidation" means, with respect to any Person, the consolidation of the accounts of such Person and each of its Subsidiaries if and to the extent the accounts of such Person and each of its Subsidiaries would normally be consolidated with those of such Person, all in accordance with GAAP. The term "Consolidated" shall have a similar meaning. "Corporate Trust Office of the Trustee" shall be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company. "Continuing Directors" means, as of any date of determination, any member of the Board of Directors of the Company who: (1) was a member of the Board of Directors on the date of the Indenture; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election. "Convertible Senior Subordinated Debentures" means the up to $135 million aggregate principal amount of 4.125% Convertible Senior Subordinated Debentures due 2027 issued by the Company under the Convertible Senior Subordinated Debentures Indenture. "Convertible Senior Subordinated Debentures Indenture" means the Convertible Senior Subordinated Debentures Indenture dated as of the Issue Date, among the Company, as issuer, certain of its Subsidiaries, as guarantors, and Wells Fargo Bank, N.A., as trustee, pursuant to which the Convertible Senior Subordinated Debentures are issued and under which the Notes are designated as "Designated Senior Debt" (as defined in the Convertible Senior Subordinated Debentures Indenture). "Credit Facility" means one or more debt facilities (including, without limitation, the Senior Credit Facilities), commercial paper facilities or other debt instruments, indentures or agreements, -8- providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), letters of credit or other debt obligations, in each case, as amended, restated, modified, renewed, refunded, restructured, supplemented, replaced or refinanced (including by means of any Qualified Receivables Transaction) from time to time in whole or in part from time to time, including, without limitation, any amendment increasing the amount of Indebtedness incurred or available to be borrowed thereunder, extending the maturity of any Indebtedness incurred thereunder or contemplated thereby or deleting, adding or substituting one or more parties thereto (whether or not such added or substituted parties are banks or other institutional lenders). "Custodian" means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto. "Default" means any event which is, or after notice or passage of time or both would be, an Event of Default. "Definitive Note" means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.07 hereof, substantially in the form of Exhibit A1 hereto except that such Note shall not bear the Global Note Legend and shall not have the "Schedule of Exchanges of Interests in the Global Note" attached thereto. "Depositary" means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.04 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provisions of this Indenture. "Disinterested Director" means, with respect to any transaction or series of related transactions, a member of the Board of Directors of the Company who does not have any material direct or indirect financial interest in or with respect to such transaction or series of related transactions. "Disqualified Stock" means any Capital Stock that, either by its terms or by the terms of any security into which it is convertible or exchangeable or otherwise, is or upon the happening of an event or passage of time would be, required to be redeemed prior to the final Stated Maturity of the principal of the Notes or is redeemable at the option of the holder thereof at any time prior to such final Stated Maturity (other than upon a change of control of or sale of assets by the Company in circumstances where the Holders of the Notes would have similar rights), or is convertible into or exchangeable for debt securities at any time prior to such final Stated Maturity at the option of the holder thereof. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder. "Exchange Notes" means the Notes issued in an Exchange Offer in accordance with Section 2.07(f) hereof. "Exchange Offer" means an exchange offer that may be effected pursuant to a Registration Rights Agreement. "Exchange Offer Registration Statement" means an Exchange Offer Registration Statement that may be filed pursuant to a Registration Rights Agreement. -9- "Exchanged Properties" means properties or assets or Capital Stock representing an equity interest in or assets used or useful in the Permitted Business, received by the Company or a Restricted Subsidiary in a substantially concurrent purchase and sale, trade or exchange as a portion of the total consideration for other such properties or assets. "Fair Market Value" means, with respect to any asset or property, the sale value that would be obtained in an arm's-length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy. Fair Market Value shall be determined by the Board of Directors of the Company acting in good faith and shall be evidenced by a Board Resolution of the Board of Directors of the Company. "Foreign Subsidiary" means any Restricted Subsidiary of the Company that (x) is not organized under the laws of the United States of America or any State thereof or the District of Columbia, or (y) was organized under the laws of the United States of America or any State thereof or the District of Columbia that has no material assets other than Capital Stock of one or more foreign entities of the type described in clause (x) above and is not a guarantor of Indebtedness of a domestic entity under the Senior Credit Facilities. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, the Public Company Accounting Oversight Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect (i) with respect to periodic reporting requirements, from time to time, and (ii) otherwise on the Issue Date. "Global Note Legend" means the legend set forth in Section 2.07(g)(ii), which is required to be placed on all Global Notes issued under this Indenture. "Global Notes" means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A1 or A2 hereto, as appropriate, issued in accordance with Section 2.01, 2.07(b)(iii), 2.07(b)(iv), 2.07(d)(i), 2.07(d)(ii), or 2.07(d)(iii) of this Indenture. "Guarantee" means the guarantee by any Guarantor of the Company's Indenture Obligations; provided that the term "Guarantee" shall not include Standard Receivables Undertakings in a Qualified Receivables Transaction. "Guaranteed Debt" of any Person means, without duplication, all Indebtedness of any other Person referred to in the definition of Indebtedness below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, -10- (3) to supply funds to, or in any other manner invest in, the debtor (including any agreement to pay for property or services without requiring that such property be received or such services be rendered), (4) to maintain working capital or equity capital of the debtor, or otherwise to maintain the net worth, solvency or other financial condition of the debtor or to cause such debtor to achieve certain levels of financial performance or (5) otherwise to assure a creditor against loss; provided that the term "guarantee" shall not include endorsements for collection or deposit, in either case in the ordinary course of business. "Guarantor" means each of the Initial Guarantors and any other Subsidiary which is a guarantor of the Notes, including any Person that is required after the date of this Indenture to execute a guarantee of the Notes pursuant to Section 4.12 hereof until a successor replaces such party pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. "Holder" means the Person in whose name a Note is, at the time of determination, registered on the Registrar's books. "IAI Global Note" means the global Note substantially in the form of Exhibit A1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors. "Indebtedness" means, with respect to any Person, without duplication, (1) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, excluding any trade payables and other accrued current liabilities arising in the ordinary course of business, but including, without limitation, all obligations, contingent or otherwise, of such Person in connection with any letters of credit issued under letter of credit facilities, acceptance facilities or other similar facilities, (2) all obligations of such Person evidenced by bonds, notes, debentures or other similar instruments, (3) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person to the extent of the value of such property (even if the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), but excluding trade payables arising in the ordinary course of business, (4) all obligations under or in respect of currency exchange contracts, commodity hedging arrangements and Interest Rate Agreements of such Person (the amount of any such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such obligation that would be payable by such Person at such time), (5) all Capital Lease Obligations of such Person, (6) the Attributable Indebtedness related to any Sale Leaseback Transaction, -11- (7) all Indebtedness referred to in clauses (1) through (6) above of other Persons and all dividends of other Persons, to the extent the payment of such Indebtedness or dividends is secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien, upon or with respect to property to the extent of the value of such property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, (8) all Guaranteed Debt of such Person, (9) all Disqualified Stock issued by such Person valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends, (10) Preferred Stock of any Restricted Subsidiary of the Company or any Guarantor, and (11) any amendment, supplement, modification, deferral, renewal, extension, refunding or refinancing of any liability of the types referred to in clauses (1) through (10) above. For purposes hereof, the "maximum fixed repurchase price" of any Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Stock, such Fair Market Value to be determined in good faith by the Board of Directors of the issuer of such Disqualified Stock. "Indenture" means this Indenture, as amended or supplemented from time to time. "Indenture Obligations" means the obligations of the Company and any other obligor under this Indenture or under the Notes, including any Guarantor, to pay principal of, premium, if any, and interest when due and payable, and all other amounts due or to become due under or in connection with this Indenture, the Notes and the performance of all other obligations to the Trustee and the holders under this Indenture and the Notes, according to the respective terms thereof. "Indirect Participant" means a Person who holds a beneficial interest in a Global Note through a Participant. "Initial Guarantors" has the meaning set forth in the preamble hereto. "Initial Notes" has the meaning stated in the second paragraph of this Indenture and means Notes other than any Exchange Notes and Additional Notes issued under this Indenture. "Initial Purchasers" means (i) Banc of America Securities LLC, KeyBanc Capital Markets, a Division of McDonald Investments Inc., BMO Capital Markets Corp. and Sun Trust Capital Markets, Inc., as initial purchasers under the Purchase Agreement dated February 7, 2007, among the Company, the Guarantors party thereto and the Initial Purchasers and (ii) with respect to any Additional Notes issued subsequent to the Issue Date, any investment bank acting as initial purchaser in connection with the issuance and sale of such Additional Notes. "Institutional Accredited Investor" means an institution that is an "accredited investor" as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs. -12- "Interest Rate Agreements" means one or more of the following agreements which shall be entered into by one or more financial institutions: interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or other types of interest rate hedging agreements from time to time. "Investment" means, with respect to any Person, directly or indirectly, any advance, loan (including guarantees), or other extension of credit or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase, acquisition or ownership by such Person of any Capital Stock, bonds, notes, debentures or other securities issued or owned by any other Person and all other items that would be classified as investments on a balance sheet prepared in accordance with GAAP. "Investment" shall exclude direct or indirect advances to customers or suppliers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable, prepaid expenses or deposits on the Company's or any Restricted Subsidiary's balance sheet, endorsements for collection or deposit arising in the ordinary course of business, extensions of trade credit on commercially reasonable terms in accordance with normal trade practices and travel expenses and similar advances to officers and employees arising in the ordinary course of business. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Capital Stock of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Company (other than the sale of all of the outstanding Capital Stock of such Subsidiary), the Company will be deemed to have made an Investment on the date of such sale or disposition equal to the Fair Market Value of the Company's Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section 4.08 hereof. "Issue Date" means the original issue date of the Initial Notes under this Indenture. "Letter of Transmittal" means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes for use by such Holders in connection with an Exchange Offer. "Lien" means any mortgage or deed of trust, charge, pledge, lien (statutory or otherwise), privilege, security interest, assignment, deposit, arrangement, easement, hypothecation, claim, preference, priority or other encumbrance upon or with respect to any property of any kind (including any conditional sale, capital lease or other title retention agreement, any leases in the nature thereof, and any agreement to give any security interest), real or personal, movable or immovable, now owned or hereafter acquired. A Person will be deemed to own subject to a Lien any property which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease Obligation or other title retention agreement. "Liquid Securities" means securities (i) of an issuer that is not an Affiliate of the Company, (ii) that are publicly traded on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market and (iii) as to which the Company is not subject to any restrictions on sale or transfer (including any volume restrictions under Rule 144 under the Securities Act or any other restrictions imposed by the Securities Act) or as to which a registration statement under the Securities Act covering the resale thereof is in effect for as long as the securities are held; provided that securities meeting the requirements of clauses (i), (ii) and (iii) above shall be treated as Liquid Securities from the date of receipt thereof until and only until the earlier of (a) the date on which such securities are sold or exchanged for cash or Cash Equivalents and (b) 150 days following the date of receipt of such securities. If such securities are not sold or exchanged for cash or Cash Equivalents within 150 days of receipt thereof, for purposes of determining whether the transaction pursuant to which the Company or a Restricted Subsidiary received the securities was in compliance with Section 4.11 hereof, such securities shall be deemed not to have been Liquid Securities at any time. -13- "Maturity" means, when used with respect to the Notes, the date on which the principal of the Notes becomes due and payable as therein provided or as provided in this Indenture, whether at Stated Maturity, the Asset Sale Purchase Date, the Change of Control Purchase Date or the redemption date and whether by declaration of acceleration, Prepayment Offer in respect of Excess Proceeds, Change of Control Offer in respect of a Change of Control, call for redemption or otherwise. "Moody's" means Moody's Investors Service, Inc. and any successor thereof. "Net Available Cash" from an Asset Sale or Sale Leaseback Transaction means cash proceeds received therefrom (including (i) any cash proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received and (ii) the Fair Market Value of Liquid Securities and Cash Equivalents, and excluding (a) any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the assets or property that is the subject of such Asset Sale or Sale Leaseback Transaction and (b) except to the extent subsequently converted to cash, Cash Equivalents or Liquid Securities within 180 days after such Asset Sale or Sale Leaseback Transaction, or consideration other than as identified in the immediately preceding clauses (i) and (ii)), in each case net of: (a) all legal, title and recording expenses, commissions and other fees and expenses incurred, and all federal, state, foreign and local taxes required to be paid or accrued as a liability under GAAP as a consequence of such Asset Sale or Sale Leaseback Transaction, (b) all payments made on any Indebtedness (but specifically excluding Indebtedness of the Company and its Restricted Subsidiaries assumed in connection with or in anticipation of such Asset Sale or Sale Leaseback Transaction) which is secured by any assets subject to such Asset Sale or Sale Leaseback Transaction, in accordance with any Lien upon such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Sale or Sale Leaseback Transaction or by applicable law, be repaid out of the proceeds from such Asset Sale or Sale Leaseback Transaction, provided that such payments are made in a manner that results in the permanent reduction in the balance of such Indebtedness and, if applicable, a permanent reduction in any outstanding commitment for future incurrences of Indebtedness thereunder, (c) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Sale or Sale Leaseback Transaction and (d) the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the assets disposed of in such Asset Sale or Sale Leaseback Transaction and retained by the Company or any Restricted Subsidiary after such Asset Sale or Sale Leaseback Transaction; provided, however, that if any consideration for an Asset Sale or Sale Leaseback Transaction (which would otherwise constitute Net Available Cash) is required to be held in escrow pending determination of whether a purchase price adjustment will be made, such consideration (or any portion thereof) shall become Net Available Cash only at such time as it is released to such Person or its Restricted Subsidiaries from escrow. "Net Cash Proceeds" means with respect to any issuance or sale of Capital Stock or options, warrants or rights to purchase Capital Stock, or debt securities or Capital Stock that have been converted into or exchanged for Capital Stock as provided under Section 4.08 hereof, the proceeds of -14- such issuance or sale in the form of cash or Cash Equivalents including payments in respect of deferred payment obligations when received in the form of, or stock or other assets when disposed of for, cash or Cash Equivalents (except to the extent that such obligations are financed or sold with recourse to the Company or any Restricted Subsidiary), net of attorney's fees, accountant's fees and brokerage, consultation, underwriting and other fees and expenses actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof. "Non-U.S. Person" means a Person who is not a U.S. Person. "Notes" has the meaning stated in the second paragraph of this Indenture and more particularly means any Notes authenticated and delivered under this Indenture. For all purposes of this Indenture: (a) the term "Notes" shall include all Additional Notes issued hereunder and any Exchange Notes to be issued and exchanged for any Notes pursuant to an applicable Registration Rights Agreement and this Indenture, and (b) (i) all Exchange Notes that are issued and exchanged for the Initial Notes and (ii) all Additional Notes issued hereunder and Exchange Notes that are issued and exchanged for such Additional Notes, shall be treated as a single class. "Obligations" means any principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Offering Memorandum" means the final Offering Memorandum, dated February 7, 2007, relating to the Initial Notes. "Officer" means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person or in the case of a Person that is a partnership that has no such officers, any such officer of a general partner of such Person. "Officers' Certificate" means a certificate signed on behalf of the Company by at least two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 12.05 hereof. "Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee that meets the requirements of Section 12.05 hereof. "Pari Passu Indebtedness" means any Indebtedness of the Company or a Guarantor that is pari passu in right of payment to the Notes or a Guarantee, as the case may be. "Pari Passu Offer" means an offer by the Company or a Guarantor to purchase all or a portion of Pari Passu Indebtedness to the extent required by the indenture or other agreement or instrument pursuant to which such Pari Passu Indebtedness was issued. -15- "Participant" means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and with respect to DTC, shall include Euroclear and Clearstream). "Permitted Business" means any business conducted by the Company or any of its Subsidiaries as described in the Offering Memorandum and any businesses that, in the good faith judgment of the Board of Directors of the Company, are reasonably related, ancillary, supplementary or complementary thereto, or reasonable extensions thereof. "Permitted Investment" means: (1) Investments in any Restricted Subsidiary (including the purchase of Capital Stock of a Restricted Subsidiary) or any Person which, as a result of such Investment, (a) becomes a Restricted Subsidiary or (b) is merged or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or any Restricted Subsidiary; (2) Indebtedness of the Company or a Restricted Subsidiary described under clauses (5), (6), (7) and (13) of the definition of "Permitted Debt" and the related Investment; (3) Investments in any of the Notes; (4) Cash Equivalents or cash; (5) Investments acquired by the Company or any Restricted Subsidiary in connection with an asset sale permitted under Section 4.11 hereof to the extent such Investments are non-cash proceeds as permitted under such Section; (6) Investments in existence on the date of this Indenture and any extensions or renewals thereof; (7) Investments acquired in exchange for the issuance of Capital Stock of the Company or an Unrestricted Subsidiary; (8) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and worker's compensation, performance and other similar deposits provided to third parties in the ordinary course of business; (9) loans or advances to employees of the Company in the ordinary course of business for bona fide business purposes of the Company and its Restricted Subsidiaries (including travel, entertainment and relocation expenses) in the aggregate amount outstanding at any one time of not more than $2.5 million; (10) any Investments received in good faith in settlement or compromise of obligations of trade creditors or customers that were incurred in the ordinary course of business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; (11) other Investments in the aggregate amount outstanding at any one time of up to $15.0 million; -16- (12) the acquisition by a Receivables Subsidiary in connection with a Qualified Receivables Transaction of Capital Stock of a trust or other Person established by such Receivables Subsidiary to effect such Qualified Receivables Transaction; and any Investment by the Company or a Subsidiary of the Company in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Transaction; provided that such Investment is in the form of a customary promissory note from the Company or a Subsidiary, contributions of additional Receivables Assets and/or cash and Cash Equivalents or equity interests; and (13) Investments in Invatection Insurance Company to the extent required under the State of Vermont regulatory authority or law. In connection with any assets or property contributed or transferred to any Person as an Investment, such property and assets shall be equal to the Fair Market Value at the time of Investment, without regard to subsequent changes in value. "Permitted Lien" means: (a) any Lien existing as of the date of this Indenture on Indebtedness existing on the date of this Indenture and not otherwise referred to in this definition; (b) any Lien with respect to a Credit Facility or any successor Credit Facility so long as the aggregate principal amount outstanding under such Credit Facility or any successor Credit Facility does not exceed the principal amount which could be borrowed under clause (1) of the definition of Permitted Debt; (c) any Lien securing Indebtedness permitted to be incurred pursuant to clause (15) and (16) of the definition of Permitted Debt; (d) any Lien granted by Invatection Insurance Company or any other captive insurance company to the extent such Indebtedness was incurred in accordance with the laws or regulations of the State of Vermont or other jurisdiction; (e) any Lien securing goods sold by a Restricted Subsidiary located in Europe to the extent such Lien is limited to the value of such goods sold; (f) any Lien securing the Notes, the Guarantees and other obligations arising under this Indenture, and any Liens in favor of the trustee or similar agent under the Convertible Senior Subordinated Debentures Indenture or in favor of any other trustee or similar agent in respect of its services as a trustee or agent and not on behalf of the holders of the debt in future debt instruments; (g) any Lien in favor of the Company or a Restricted Subsidiary; (h) any Lien arising by reason of: (1) any judgment, decree or order of any court, so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired; -17- (2) taxes, assessments or governmental charges or claims that are not yet delinquent or which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, provided that any reserve or other appropriate provision as will be required in conformity with GAAP will have been made therefor; (3) security made in the ordinary course of business in connection with workers'compensation, unemployment insurance or other types of social security; (4) good faith deposits in connection with tenders, leases and contracts (other than contracts for the payment of money); (5) zoning restrictions, easements, licenses, reservations, title defects, rights of others for rights of way, utilities, sewers, electric lines, telephone or telegraph lines, and other similar purposes, provisions, covenants, conditions, waivers, restrictions on the use of property or minor irregularities of title (and with respect to leasehold interests, mortgages, obligations, Liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), none of which materially impairs the use of any parcel of property material to the operation of the business of the Company or any Subsidiary or the value of such property for the purpose of such business; (6) deposits to secure public or statutory obligations, or in lieu of surety or appeal bonds; (7) operation of law in favor of mechanics, carriers, warehousemen, landlords, materialmen, laborers, employees or suppliers, incurred in the ordinary course of business for sums which are not yet delinquent or are being contested in good faith by negotiations or by appropriate proceedings which suspend the collection thereof; or (8) Indebtedness or other obligations of a Wholly Owned Restricted Subsidiary owing to the Company or another Wholly Owned Restricted Subsidiary of the Company. (i) any Lien securing Acquired Debt created prior to (and not created in connection with, or in contemplation of) the incurrence of such Indebtedness by the Company or any Subsidiary; provided that such Lien only secures the assets acquired in connection with the transaction pursuant to which the Acquired Debt became an obligation of the Company or a Restricted Subsidiary; (j) any Lien to secure performance bids, leases (including, without limitation, statutory and common law landlord's liens), statutory obligations, surety and appeal bonds, letters of credit and other obligations of a like nature and incurred in the ordinary course of business of the Company or any Subsidiary and not securing or supporting Indebtedness; (k) any Lien securing Indebtedness permitted to be incurred under Interest Rate Agreements incurred pursuant to clause (7) of the definition of Permitted Debt, so long as none of such Indebtedness constitutes debt for borrowed money; (l) any Lien securing Capital Lease Obligations or Purchase Money Obligations incurred in accordance with this Indenture (pursuant to clause (8) of the definition of Permitted -18- Debt) and which are incurred or assumed solely in connection with the acquisition, development or construction of real or personal, moveable or immovable property commencing within 90 days of such incurrence or assumption; provided that such Liens only extend to such acquired, developed or constructed property, such Liens secure Indebtedness in an amount not in excess of the original purchase price or the original cost of any such assets or repair, addition or improvement thereto (including the cost of any installation and software), and the incurrence of such Indebtedness is permitted by Section 4.07 hereof; (m) leases and subleases of real property which do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries; (n) (1) Liens on property, assets or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Company or any of its Restricted Subsidiaries; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming a Restricted Subsidiary or such merger or consolidation; provided further that any such Lien may not extend to any other property owned by the Company or any Restricted Subsidiary and assets fixed or appurtenant thereto; and (2) Liens on property, assets or shares of capital stock existing at the time of acquisition thereof by the Company or any of its Restricted Subsidiaries; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such acquisition and do not extend to any property other than the property so acquired; (o) any Lien incurred in connection with a transaction of the type contemplated pursuant to clause (13) of the definition of Permitted Debt; (p) any extension, renewal, refinancing or replacement, in whole or in part, of any Lien described in the foregoing clauses (a) through (o) so long as no additional collateral is granted as security thereby; and (q) in addition to the items referred to in clauses (a) through (p) above, Liens of the Company and its Restricted Subsidiaries on Indebtedness in an aggregate amount which, when taken together with the aggregate amount of all Liens on Indebtedness incurred pursuant to clause (q) and then outstanding, will not exceed 10.0% of Consolidated Net Tangible Assets at any one time outstanding. "Permitted Refinancing Indebtedness" means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that: (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith); (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; -19- (3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and (4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary that is the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged. "Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Predecessor Note" of any particular Note means every previous Note evidencing all or a portion of the same Indebtedness as that evidenced by such particular Note; and any Note authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same Indebtedness as the lost, destroyed or stolen Note. "Preferred Stock" means, with respect to any Person, any Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Capital Stock of any other class in such Person. "Private Placement Legend" means the legend set forth in Section 2.07(g)(i) to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture. "Public Equity Offering" means an underwritten public offering of common stock (other than Disqualified Stock) of the Company pursuant to a registration statement that has been declared effective by the Commission pursuant to the Securities Act (other than a registration statement on Form S-4 (or any successor form covering substantially the same transactions), Form S-8 (or any successor form covering substantially the same transactions) or otherwise relating to equity securities issuable under any employee benefit plan of the Company). "Purchase Money Obligation" means any Indebtedness secured by a Lien on assets related to the business of the Company and any additions and accessions thereto, which are purchased or constructed by the Company at any time after the Notes are issued; provided that (1) the security agreement or conditional sales or other title retention contract pursuant to which the Lien on such assets is created (collectively, a "Purchase Money Security Agreement") shall be entered into within 90 days after the purchase or substantial completion of the construction of such assets and shall at all times be confined solely to the assets so purchased or acquired, any additions and accessions thereto and any proceeds therefrom, (2) at no time shall the aggregate principal amount of the outstanding Indebtedness secured thereby be increased, except in connection with the purchase of additions and accessions thereto and except in respect of fees and other obligations in respect of such Indebtedness, and (3) (A) the aggregate outstanding principal amount of Indebtedness secured thereby (determined on a per asset basis in the case of any additions and accessions) shall not at the time -20- such Purchase Money Security Agreement is entered into exceed 100% of the purchase price to the Company of the assets subject thereto (including the cost of any installation and software) or (B) the Indebtedness secured thereby shall be with recourse solely to the assets so purchased or acquired (including the cost of any installation software), any additions and accessions thereto and any proceeds therefrom. "QIB" means a "qualified institutional buyer" as defined in Rule 144A. "Qualified Capital Stock" of any Person means any and all Capital Stock of such Person other than Disqualified Stock. "Qualified Receivables Transaction" means any transaction or series of transactions entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries sells, conveys or otherwise transfers to (1) a Receivables Subsidiary (in the case of a transfer by the Company or any of its Subsidiaries) or (2) any other Person (in the case of a transfer by a Receivables Subsidiary), or transfers an undivided interest in or grants a security interest in, any Receivable Assets (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Receivable Assets, all contracts and all guarantees or other obligations in respect of such Receivable Assets, proceeds of such Receivable Assets and other assets which are customarily transferred, or in respect of which security interest are customarily granted, in connection with asset securitization transactions involving Receivable Assets and any hedging obligations entered into by the Company or any of its Subsidiaries in connection with such Receivable Assets. "Receivables Assets" means any accounts receivable, instruments, chattel paper, contract rights, general intangibles or revenue streams or any rights to collection of any of the foregoing (whether now existing or arising or acquired in the future) subject to a Qualified Receivables Transaction and any assets related thereto, including, without limitation, all collateral securing such assets including any pledged bank accounts and lock boxes, all contracts and contract rights and all guarantees or other obligations in respect of such assets and all proceeds of the foregoing. "Receivables Subsidiary" means a Subsidiary of the Company (or another Person formed for the purposes of engaging in a Qualified Receivables Transaction in which the Company or any of its Subsidiaries makes an Investment and to which the Company or any of its Subsidiaries transfers Receivables Assets and related assets) which engages in no activities other than in connection with the financing of Receivables Assets of the Company or its Subsidiaries, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Company (as provided below) to be a Receivables Subsidiary (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (1) is guaranteed by the Company or any Subsidiary of the Company (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Receivables Undertakings), (2) is recourse to or obligates the Company or any Subsidiary of the Company in any way other than pursuant to Standard Receivables Undertakings or (3) subjects any property or assets of the Company or any Subsidiary of the Company (other than Receivables Assets and related assets as provided in the definition of "Qualified Receivables Transaction") directly or indirectly, contingently or otherwise, to the satisfaction thereof other than pursuant to Standard Receivables Undertakings, (b) with which neither the Company nor any Subsidiary of the Company has any material contract, agreement, arrangement or understanding (other than on terms which the Company reasonably believes to be no less favorable to the Company or such Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company) other than fees payable in the ordinary course of business in connection with servicing Receivables Assets, and (c) with which neither the Company nor any Subsidiary of the Company has any obligation to maintain or -21- preserve such entity's financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of the Company or such other Person will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company or such Person giving effect to such designation, together with an officers' certificate certifying that such designation complied with the foregoing conditions. "Registration Rights Agreement" means (i) the Registration Rights Agreement among the Company, the Initial Guarantors and the Initial Purchasers named therein, dated as of February 12, 2007, relating to the Initial Notes, and (ii) with respect to any Additional Notes issued subsequent to the Issue Date, any registration rights agreement entered into for the benefit of the holders of such Additional Notes, if any. "Regulation S" means Regulation S promulgated under the Securities Act. "Regulation S Global Note" means a Regulation S Temporary Global Note or a Regulation S Permanent Global Note, as appropriate. "Regulation S Permanent Global Note" means a permanent global Note in the form of Exhibit A1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount at maturity of the Regulation S Temporary Global Note upon expiration of the Restricted Period. "Regulation S Temporary Global Note" means a temporary global Note in the form of Exhibit A2 hereto bearing the Global Note Legend, the Private Placement Legend and the Temporary Regulation S Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount at maturity of the Notes initially sold in reliance on Rule 903 of Regulation S. "Responsible Officer" when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject. "Restricted Definitive Note" means a Definitive Note bearing the Private Placement Legend. "Restricted Global Note" means a Global Note bearing the Private Placement Legend. "Restricted Period" means the 40-day distribution compliance period, as defined in Rule 902(f) of Regulation S. "Restricted Subsidiary" means any Subsidiary of the Company that has not been designated by the Board of Directors of the Company by a Board Resolution delivered to the Trustee as an Unrestricted Subsidiary pursuant to and in compliance with Section 4.18 hereof. "Revolving Credit Facility" means the revolving credit facility of $150 million dated as of February 12, 2007 with the Company as borrower and Bank of America, N.A., National City Bank and KeyBank National Association as initial lenders thereunder, with National City Bank as administrative -22- agent, National City Bank and KeyBank National Association as joint lead arrangers, Banc of America Securities LLC, National City Bank and KeyBank National Association as joint book running managers, KeyBank National Association as syndication agent and Bank of America, N.A. as documentation agent thereunder. "Rule 144" means Rule 144 promulgated under the Securities Act. "Rule 144A" means Rule 144A promulgated under the Securities Act. "Rule 903" means Rule 903 promulgated under the Securities Act. "Rule 904" means Rule 904 promulgated under the Securities Act. "Sale Leaseback Transaction" means, with respect to the Company or any of its Restricted Subsidiaries, any arrangement with any Person providing for the leasing by the Company or any of its Restricted Subsidiaries of any principal property, acquired or placed into service more than 180 days prior to such arrangement, whereby such property has been or is to be sold or transferred by the Company or any of its Restricted Subsidiaries to such Person. "Securities Act" means the Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated by the Commission thereunder. "Senior Credit Facilities" means, collectively, the Revolving Credit Facility and the Term B Credit Facility. "Shelf Registration Statement" means a Shelf Registration Statement that may be filed pursuant to a Registration Rights Agreement. "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereof. "Significant Subsidiary" means any Restricted Subsidiary that would be a "significant subsidiary" of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission as in effect on the date of this Indenture. "Standard Receivables Undertakings" means representations, warranties, covenants and indemnities, including, without limitation, any indemnification of directors, entered into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be reasonably customary in a Qualified Receivables Transaction, including, without limitation, those relating to the servicing of the assets of a Receivables Subsidiary. "Stated Maturity" means, when used with respect to any Indebtedness or any installment of interest thereon, the dates specified in such Indebtedness as the fixed date on which the principal of such Indebtedness or such installment of interest, as the case may be, is due and payable. "Subordinated Indebtedness" means Indebtedness of the Company or a Guarantor subordinated in right of payment to the Notes or a Guarantee, as the case may be. "Subsidiary" of a Person means -23- (1) any corporation more than 50% of the outstanding voting power of the Voting Stock of which is owned or controlled, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person, or by such Person and one or more other Subsidiaries thereof, or (2) any limited partnership of which such Person or any Subsidiary of such Person is a general partner, or (3) any other Person in which such Person, or one or more other Subsidiaries of such Person, or such Person and one or more other Subsidiaries, directly or indirectly, has more than 50% of the outstanding partnership or similar interests or has the power, by contract or otherwise, to direct or cause the direction of the policies, management and affairs thereof. "Temporary Regulation S Legend" means the legend set forth in Section 2.07(h) hereof, which is required to be placed on the Regulation S Temporary Global Note. "Term B Credit Facility" means the Term B facility aggregating $250 million dated as of February 12, 2007 with the Company as borrower and Bank of America, N.A., National City Bank and KeyBank National Association as initial lenders thereunder, with National City as administrative agent, Banc of America Securities LLC and KeyBank National Association as joint lead arrangers, Banc of America Securities LLC, National City Bank and KeyBank National Association as joint book running managers, KeyBank National Association as syndication agent and Bank of America, N.A. as documentation agent thereunder. "Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as amended, or any successor statute. "Trustee" means Wells Fargo Bank, N.A. until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder. "Unrestricted Definitive Note" means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend. "Unrestricted Global Note" means a permanent Global Note substantially in the form of Exhibit A1 attached hereto that bears the Global Note Legend and that has the "Schedule of Exchanges of Interests in the Global Note" attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing a series of Notes that do not bear the Private Placement Legend. "Unrestricted Subsidiary" means any Subsidiary of the Company (other than a Guarantor) designated as such pursuant to and in compliance with Section 4.18 hereof. "Unrestricted Subsidiary Indebtedness" of any Unrestricted Subsidiary means Indebtedness of such Unrestricted Subsidiary (1) as to which neither the Company nor any Restricted Subsidiary is directly or indirectly liable (by virtue of the Company or any such Restricted Subsidiary being the primary obligor on, guarantor of, or otherwise liable in any respect to, such Indebtedness), except Guaranteed Debt of the Company or any Restricted Subsidiary to any Affiliate of the Company, in which case (unless the incurrence of such Guaranteed Debt resulted in a Restricted Payment at the time of incurrence) the Company shall be deemed to have made a Restricted Payment equal to -24- the principal amount of any such Indebtedness to the extent guaranteed at the time such Affiliate is designated an Unrestricted Subsidiary; and (2) which, upon the occurrence of a default with respect thereto, does not result in, or permit any holder of any Indebtedness of the Company or any Restricted Subsidiary to declare, a default on such Indebtedness of the Company or any Restricted Subsidiary or cause the payment thereof to be accelerated or payable prior to its Stated Maturity; provided that notwithstanding the foregoing, any Unrestricted Subsidiary may guarantee the Notes. "U.S. Government Obligations" means (i) securities that are (a) direct obligations of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof; and (ii) depositary receipts issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in clause (i) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal or interest on any U.S. Government Obligation which is so specified and held; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest of the U.S. Government Obligation evidenced by such depositary receipt. "U.S. Person" means a U.S. person as defined in Rule 902(k) under the Securities Act. "Voting Stock" of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors, managers or trustees of such Person (irrespective of whether or not at the time Capital Stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency). "Weighted Average Life to Maturity" means, as of the date of determination with respect to any Indebtedness, the quotient obtained by dividing (1) the sum of the products of (a) the number of years from the date of determination to the date or dates of each successive scheduled principal payment and (b) the amount of each such principal payment by (2) the sum of all such principal payments. "Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary all the Capital Stock of which is owned by the Company or another Wholly Owned Restricted Subsidiary (other than directors' qualifying shares). -25- Section 1.02. Other Definitions.
DEFINED IN TERM SECTION - ---- ------- "Act"................................................................ 12.14 "Asset Sale Purchase Date"........................................... 4.11 "Authentication Order"............................................... 2.02 "Change of Control Offer"............................................ 4.19 "Change of Control Purchase Date".................................... 4.18 "Change of Control Purchase Notice".................................. 4.18 "Change of Control Purchase Price"................................... 4.18 "Covenant Defeasance"................................................ 8.03 "Defeasance Redemption Date"......................................... 8.04 "Designation"........................................................ 4.16 "Designation Amount"................................................. 4.16 "DTC"................................................................ 2.01 "Event of Default"................................................... 6.01 "Excess Proceeds".................................................... 4.11 "Funds in Trust"..................................................... 8.04 "incur".............................................................. 4.07 "Legal Defeasance"................................................... 8.02 "Paying Agent"....................................................... 2.04 "Permitted Consideration"............................................ 4.11 "Permitted Debt"..................................................... 4.07 "Permitted Payment".................................................. 4.08 "Prepayment Offer"................................................... 4.11 "Prepayment Offer Notice"............................................ 4.11 "Prepayment Offer Price"............................................. 4.11 "Purchase Money Security Agreement".................................. 1.01 "Registrar".......................................................... 2.04 "Related Proceedings"................................................ 12.09 "Restricted Payments"................................................ 4.08 "Revocation"......................................................... 4.16
-26- "Specified Courts"................................................... 12.09 "Surviving Entity"................................................... 5.01 "Surviving Guarantor Entity"......................................... 5.01 "Trustee"............................................................ 8.05

Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. All terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings so assigned to them. Section 1.04. Rules of Construction. Unless the context otherwise requires: (i) a term has the meaning assigned to it; (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (iii) words in the singular include the plural, and in the plural include the singular; (iv) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time; and (v) all references herein to "interest" include the Additional Interest. ARTICLE TWO THE NOTES Section 2.01. Form and Dating. (a) General. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A1 or A2 hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be issued in registered, global form without interest coupons and only shall be in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Company, any Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. -27- (b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A1 or A2 attached hereto (including the Global Note Legend thereon and the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A1 attached hereto (but without the Global Note Legend thereon and without the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.07 hereof. (c) Temporary Global Notes. To the extent required by Regulation S, Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for The Depository Trust Company ("DTC"), and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Restricted Period shall be terminated upon the receipt by the Trustee of an Officers' Certificate from the Company certifying that the Restricted Period may be terminated in accordance with Regulation S and that beneficial interests in the Regulation S Temporary Global Note are permitted to be exchanged for beneficial interests in Regulation S Permanent Global Notes. Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in Regulation S Permanent Global Notes pursuant to the Applicable Procedures. Simultaneously with the authentication of Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided. (d) Euroclear and Clearstream Procedures Applicable. The provisions of the "Operating Procedures of the Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank" and "Customer Handbook" of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by Participants through Euroclear or Clearstream. (e) Additional Notes. Notwithstanding anything else herein, with respect to any Additional Notes issued subsequent to the date of this Indenture, when the context requires, (1) all references in Article Two herein and elsewhere in this Indenture to a Registration Rights Agreement shall be to the registration rights agreement entered into with respect to such Additional Notes, (2) any references in this Indenture to the Exchange Offer, Exchange Offer Registration Statement, Shelf Registration Statement, Initial Purchasers, and any other term related thereto shall be to such terms as they are defined in such Registration Rights Agreement entered into with respect to such Additional Notes, (3) all time periods described in the Notes with respect to the registration of such Additional Notes shall be as provided in such Registration Rights Agreement entered into with respect to such Additional Notes, (4) any Additional Interest, if set forth in such Registration Rights Agreement, may be paid to the Holders of the Additional Notes immediately prior to the making or the consummation of the Exchange Offer regardless of any other provisions regarding record dates herein and (5) all provisions of this Indenture shall be construed and interpreted to permit the issuance of such Additional Notes and to allow -28- such Additional Notes to become fungible and interchangeable with the Initial Notes originally issued under this Indenture (and Exchange Notes issued in exchange therefor). Indebtedness represented by Additional Notes shall be subject to the covenants contained in this Indenture. Section 2.02. Execution and Authentication. (a) Two Officers of the Company shall sign the Notes for the Company by manual or facsimile signature. (b) The Trustee shall, upon a written order of the Company signed by two Officers of the Company (an "Authentication Order") delivered to the Trustee from time to time, authenticate and deliver Notes for original issue without limit as to the aggregate principal amount thereof, subject to compliance with Section 4.07, of which $175 million will be issued on the date of this Indenture. (c) Upon receipt of an Authentication Order, the Trustee shall authenticate for original issue (i) Exchange Notes in exchange for Initial Notes in an aggregate principal amount not to exceed $175 million on the date hereof and in the aggregate principal amount of the Notes issued in accordance with this Indenture after the date hereof or (ii) Exchange Notes in exchange for Additional Notes; provided that such Exchange Notes shall be issuable only upon the valid surrender for cancellation of Initial Notes issued on the date hereof or Additional Notes, as the case may be, of a like aggregate principal amount in accordance with an Exchange Offer pursuant to an applicable Registration Rights Agreement. (d) If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid. (e) A Note shall not be valid until authenticated by the manual signature of the Trustee. Such signature shall be conclusive evidence that the Note has been authenticated under this Indenture. (f) The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is unlimited. (g) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company. Section 2.03. Methods of Receiving Payments on the Notes. If a Holder of Notes has given wire transfer instructions to the Company at least 10 Business Days before payment is due, the Company shall pay all principal, interest and premium, if any, on that Holder's Notes in accordance with those instructions. All other payments on Notes shall be made at the office or agency of the Paying Agent and Registrar unless the Company elects to make interest payments by check mailed to the Holders at their addresses set forth in the register of Holders. Payments of interest to the Trustee as Paying Agent, if the Trustee then acts as Paying Agent, with respect to any Interest Payment Date (as defined in the Notes) shall be made by the Company in immediately available funds for receipt by the Trustee no later than 10:00 a.m. Eastern Time on such Interest Payment Date. -29- Section 2.04. Registrar and Paying Agent. (a) The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange ("Registrar") and an office or agency where Notes may be presented for payment ("Paying Agent"). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent. The Company may change any Paying Agent or Registrar without prior notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar. (b) The Company initially appoints DTC to act as Depositary with respect to the Global Notes. (c) The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes. Section 2.05. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal or premium, if any, or interest on the Notes, and shall notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or one of its Subsidiaries) shall have no further liability for the money. If the Company or any of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes. Section 2.06. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least 15 Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA Section 312(a). Section 2.07. Transfer and Exchange. (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes shall be exchanged by the Company for Definitive Notes if (i) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the -30- Company within 90 days after the date of such notice from the Depositary; (ii) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; provided that in no event shall the Regulation S Temporary Global Note be exchanged by the Company for Definitive Notes prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act; or (iii) there shall have occurred and be continuing a Default or Event of Default with respect to the Notes. Upon the occurrence of any of the preceding events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.08 and 2.11 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.07 or Section 2.08 or 2.11 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.07(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.07(b), (c) or (f) hereof. (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable: (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend and any Applicable Procedures; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than a "distributor" (as defined in Rule 902(d) of Regulation S)). Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. Except as may be required by any Applicable Procedures, no written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.07(b)(i). (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.07(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) if permitted under Section 2.07(a) hereof, a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive -31- Note shall be registered to effect the transfer or exchange referred to in (1) above; provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Note prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act. Upon consummation of an Exchange Offer by the Company in accordance with Section 2.07(f) hereof, the requirements of this Section 2.07(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount at maturity of the relevant Global Notes pursuant to Section 2.07(i) hereof. (iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.07(b)(ii) above and the Registrar receives the following: (A) if the transferee shall take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof or, if permitted by the Applicable Procedures, item (3) thereof; (B) if the transferee shall take delivery in the form of a beneficial interest in the Regulation S Temporary Global Note or Regulation S Permanent Global Note, as the case may be, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; (C) if the transferee is required by the Applicable Procedures to take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications and certificates and Opinion of Counsel required by item (3) thereof, if applicable. (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in the Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any Holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.07(b)(ii) above and: (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with an applicable Registration Rights Agreement and the holder of the beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, makes any and all certifications required in the applicable Letter of Transmittal (or is deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement; -32- (B) such transfer is effected pursuant to a Shelf Registration Statement in accordance with an applicable Registration Rights Agreement; (C) such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with an applicable Registration Rights Agreement; or (D) the Registrar receives the following: (1) if the Holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or (2) if the Holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, in each such case set forth in clause (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. If any such transfer is effected pursuant to clause (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to clause (B) or (D) above. (v) Transfer or Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in a Restricted Global Note Prohibited. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note. (c) Transfer or Exchange of Beneficial Interests for Definitive Notes. (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. Subject to Section 2.07(a) hereof, if any Holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation: (A) if the Holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive -33- Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof; (B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof; (C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction (as defined in Section 902(h) of Regulation S) in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof; (D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof; (E) if such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable; (F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or (G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.07(i) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.07(c)(i) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.07(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein. (ii) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes. Notwithstanding Sections 2.07(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior -34- to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904. (iii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. Subject to Section 2.07(a) hereof, a Holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if: (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with an applicable Registration Rights Agreement and the holder of the beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, makes any and all certifications required in the applicable Letter of Transmittal (or is deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement; (B) such transfer is effected pursuant to a Shelf Registration Statement in accordance with an applicable Registration Rights Agreement; (C) such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with an applicable Registration Rights Agreement; or (D) the Registrar receives the following: (1) if the Holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Definitive Note that does not bear the Private Placement Legend, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or (2) if the Holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a Definitive Note that does not bear the Private Placement Legend, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. Upon satisfaction of any of the conditions of any of the clauses of this Section 2.07(c)(iii), the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver a Definitive Note that does not bear the Private Placement Legend in the appropriate -35- principal amount to the Person designated by the holder of such beneficial interest in instructions delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant on behalf of such holder, and the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to Section 2.07(i), the aggregate principal amount of the applicable Restricted Global Note. (iv) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any Holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.07(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.07(i) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.07(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.07(c)(iv) shall not bear the Private Placement Legend. (d) Transfer and Exchange of Definitive Notes for Beneficial Interests. (i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation: (A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof; (B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof; (C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction (as defined in Rule 902(k) of Regulation S) in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof; (D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof; -36- (E) if such Restricted Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable; (F) if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or (G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof, the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note and in all other cases the IAI Global Note. (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if: (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with an applicable Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, makes any and all certifications required in the applicable Letter of Transmittal (or is deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement; (B) such transfer is effected pursuant to a Shelf Registration Statement in accordance with an applicable Registration Rights Agreement; (C) such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with an applicable Registration Rights Agreement; or (D) the Registrar receives the following: (1) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or -37- (2) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, in each such case set forth in this clause (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. Upon satisfaction of any of the conditions of any of the clauses of this Section 2.07(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note. (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased in a corresponding amount the aggregate principal amount of one of the Unrestricted Global Notes pursuant to Section 2.07(i) hereof; (iv) Transfer or Exchange of Unrestricted Definitive Notes to Beneficial Interests in Restricted Global Notes Prohibited. An Unrestricted Definitive Note may not be exchanged for, or transferred to Persons who take delivery thereof in the form of, beneficial interests in a Restricted Global Note. (v) Issuance of Unrestricted Global Notes. If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred. (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance with the provisions of this Section 2.07(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.07(e). (i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons -38- who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following: (A) if the transfer shall be made pursuant to Rule 144A under the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; (B) if the transfer shall be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and (C) if the transfer shall be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable. (ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note only if: (A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with an applicable Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, makes any and all certifications required in the applicable Letter of Transmittal (or is deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement; (B) any such transfer is effected pursuant to a Shelf Registration Statement in accordance with an applicable Registration Rights Agreement; (C) any such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with an applicable Registration Rights Agreement; or (D) the Registrar receives the following: (1) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or (2) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, in each such case set forth in this clause (D), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Company to the effect -39- that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. Upon satisfaction of the conditions of any of the clauses of this Section 2.07(e)(ii), the Trustee shall cancel the prior Restricted Definitive Note and the Company shall execute, and upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate aggregate principal amount to the Person designated by the Holder of such prior Restricted Definitive Note in instructions delivered to the Registrar by such Holder. (iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof. (f) Exchange Offer. Upon the occurrence of an Exchange Offer in accordance with an applicable Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate (A) one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of the beneficial interests in the applicable Restricted Global Notes (1) tendered for acceptance by Persons that make any and all certifications in the applicable Letters of Transmittal (or are deemed to have made such certifications if delivery is made through the Applicable Procedures) as may be required by such Registration Rights Agreement and (2) accepted for exchange in such Exchange Offer and (B) Unrestricted Definitive Notes in an aggregate principal amount equal to the aggregate principal amount of the Restricted Definitive Notes tendered for acceptance by Persons who made the foregoing certifications and accepted for exchange in the Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall reduce or cause to be reduced in a corresponding amount the aggregate principal amount of the applicable Restricted Global Notes, and the Company shall execute and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver to the Persons designated by the Holders of Restricted Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate aggregate principal amount. Any Notes that remain outstanding after the consummation of an Exchange Offer, and Exchange Notes issued in connection with an Exchange Offer, shall be treated as a single class of securities under this Indenture. (g) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture. (i) Private Placement Legend. Except as permitted below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form: THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON, NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN -40- THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE "RESALE RESTRICTION TERMINATION DATE"), EXCEPT THAT THE NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.07 (and all Notes issued in exchange therefor or substitution thereof) (and any note not required by law to have such a legend), shall not bear the Private Placement Legend. In addition, the foregoing legend may be adjusted for future issuances in accordance with applicable law. (ii) Global Note Legend. Each Global Note shall bear a legend in substantially the following form: -41- THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. (h) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note shall bear a legend in substantially the following form: THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). (i) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.12 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who shall take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase. (j) General Provisions Relating to Transfers and Exchanges. (i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon the Company's order or at the Registrar's request. (ii) No service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.11, 3.06, 4.11, 4.20 and 9.05 hereof). -42- (iii) The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid and legally binding obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange. (v) The Company shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date. (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary. (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof. (viii) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.07 to effect a registration of transfer or exchange may be submitted by facsimile with the original to follow by first class mail or delivery service. Section 2.08. Replacement Notes. (a) If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to their satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee's requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for their expenses in replacing a Note. (b) Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder. Section 2.09. Outstanding Notes. (a) The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this -43- Section as not outstanding. Except as set forth in Section 2.10 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note. (b) If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser. (c) If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue. (d) If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of any of the foregoing) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest. Section 2.10. Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned shall be so disregarded. Section 2.11. Temporary Notes. (a) Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes. (b) Holders of temporary Notes shall be entitled to all of the benefits of this Indenture. Section 2.12. Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of canceled Notes in accordance with its procedures for the disposition of canceled securities in effect as of the date of such disposition (subject to the record retention requirement of the Exchange Act). Certification of the disposition of all canceled Notes shall be delivered to the Company upon request. The Company may not issue new Notes to replace Notes that they have paid or that have been delivered to the Trustee for cancellation. Section 2.13. Defaulted Interest. If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the -44- Persons who are Holders on the record date for the interest payment or a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. Section 2.14. CUSIP Numbers. The Company in issuing the Notes may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change in the "CUSIP" numbers. Section 2.15. Additional Interest. If Additional Interest is payable by the Company pursuant to an applicable Registration Rights Agreement and paragraph 1 of the Notes, no later than 15 days prior to the proposed payment date for such Additional Interest, the Company shall deliver to the Trustee a certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such interest is payable pursuant to Section 4.01 hereof. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officers' Certificate setting forth the details of such payment. Section 2.16. Issuance of Additional Notes. (a) The Company shall be entitled, subject to its compliance with Article Four hereof, to issue Additional Notes under this Indenture. (b) With respect to any Additional Notes, the Company shall set forth in a Board Resolution and an Officers' Certificate, a copy of each of which shall be delivered to the Trustee, the following information: (1) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture; (2) the issue price, the issue date and the CUSIP and/or ISIN number of such Additional Notes; and (3) whether such Additional Notes shall be subject to the restrictions on transfer set forth in Section 2.07 hereof relating to Restricted Global Notes and Restricted Definitive Notes. -45- ARTICLE THREE REDEMPTION AND PREPAYMENT Section 3.01. Notices to Trustee. If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date, an Officers' Certificate setting forth (i) the clause of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption price. Section 3.02. Selection of Notes to Be Redeemed. (a) If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Notes to be redeemed or purchased among the Holders of the Notes not more than 60 days prior to the redemption date, or otherwise in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption. (b) The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount at maturity thereof to be redeemed. No Notes in amounts of $1,000 or less shall be redeemed in part. The Trustee may select for redemption portions of the principal of Notes that have denominations larger than $1,000. Notes and portions of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. Redemptions pursuant to Section 3.07(b) hereof shall be made on a pro rata basis or on as nearly a pro rata basis as practicable (subject to the provisions of DTC or other depositary). Section 3.03. Notice of Redemption. (a) At least 30 days but not more than 60 days before a redemption date, the Company shall deliver a notice of redemption to each Holder whose Notes are to be redeemed at its registered address and deliver a copy to the Trustee at the same time. The notice shall identify the Notes (including CUSIP number(s)) to be redeemed and shall state: (i) the redemption date; (ii) the redemption price; (iii) if any Note is being redeemed in part, the portion of the principal amount at maturity of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion of the original Note shall be issued in the name of the Holder thereof upon cancellation of the original Note; -46- (iv) the name and address of the Paying Agent; (v) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price and become due on the date fixed for redemption; (vi) that, unless the Company defaults in making such redemption payment, interest, if any, on Notes called for redemption ceases to accrue on and after the redemption date; (vii) the paragraph of the Notes and/or section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and (viii) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes. (b) At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least 45 days prior to the redemption date (unless the Trustee shall have agreed to a shorter period), an Officers' Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. The notice, if delivered in the manner provided herein shall be presumed to have been given, whether or not the Holder receives such notice. Section 3.04. Effect of Notice of Redemption. Once notice of redemption is delivered in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional other than in the case of a Change of Control Offer pursuant to Section 4.20 hereof. Section 3.05. Deposit of Redemption Price. (a) One Business Day prior to the redemption date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed. (b) If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Holder in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof. Section 3.06. Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, the Company shall issue and the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal -47- amount to the unredeemed portion of the Note surrendered. No Notes in denominations of $1,000 or less shall be redeemed in part. Section 3.07. Optional Redemption. (a) On or after February 15, 2011, the Company may redeem all or a portion of the Notes, on not less than 30 nor more than 60 days' prior written notice, in amounts of $1,000 or whole multiples of $1,000 in excess thereof at the following redemption prices (expressed as percentages of the principal amount), set forth below plus accrued and unpaid interest, if any, thereon, to the applicable redemption date (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date), if redeemed during the twelve-month period beginning on February 15 of the years indicated below:
YEAR REDEMPTION PRICE - ---- ---------------- ~~2011................... 104.875% 2012................... 102.438% 2013 and thereafter.... 100.000%~~
(b) In addition, at any time and from time to time prior to February 15, 2010, the Company may use the net proceeds of one or more Equity Offerings to redeem up to an aggregate of 35% of the aggregate principal amount of Notes issued under this Indenture (including the principal amount of any Additional Notes issued under this Indenture) at a redemption price equal to 109.750% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the redemption date (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date); provided that this redemption provision shall not be applicable with respect to any transaction that results in a Change of Control. At least 65% of the aggregate principal amount of Notes (including the principal amount of any Additional Notes issued under this Indenture) must remain outstanding immediately after the occurrence of such redemption. In order to effect this redemption, the Company must deliver a notice of redemption no later than 30 days after the closing of the related Public Equity Offering and must complete such redemption within 60 days of the closing of the Public Equity Offering. (c) At any time prior to February 15, 2011, the Company also may redeem all or part of the Notes, upon not less than 30 nor more than 60 days' written notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to the redemption date, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date. (d) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof. Section 3.08. Mandatory Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. Section 3.09. Application of Trust Money. All money deposited with the Trustee pursuant to Section 3.05 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either -48- directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law. ARTICLE FOUR COVENANTS Section 4.01. Payment of Notes. (a) The Company shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or one of its Subsidiaries, holds as of 10:00 a.m. New York Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest on the Notes then due. If a payment date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue on such payment for the intervening period. The Company shall pay Additional Interest, if any, on the dates of its choosing in the amounts and in the manner set forth in the Registration Rights Agreement. (b) The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal in the manner provided in the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful. Section 4.02. Maintenance of Office or Agency. (a) The Company shall maintain an office or agency (which may be an office of the Trustee or an agent of the Trustee, Registrar or co-Registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee. (b) The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. (c) The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.04 of this Indenture. Section 4.03. Reports. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Commission, the Indenture will require the Company to file with the Commission -49- (and make available to the Trustee and Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after it files them with the Commission) from and after the Issue Date, (1) within the time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K after the end of each fiscal year, annual reports on Form 10-K, or any successor or comparable form, containing the information required to be contained therein, or required in such successor or comparable form; (2) within the time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-Q after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form; (3) within the time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 8-K after the occurrence of an event required to be therein reported, such other reports on Form 8-K, or any successor or comparable form; and (4) any other information, documents and other reports which the Company would be required to file with the Commission if it were subject to Section 13 or 15(d) of the Exchange Act; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided that the Company shall not be so obligated to file such reports with the Commission if the Commission does not permit such filing, in which event the Company will make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Company would be required to file such information with the Commission, if it were subject to Section 13 or 15(d) of the Exchange Act. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (b) The Company shall hold a quarterly conference call for the Holders of the Notes to discuss the Company's operating results within five Business Days from the date that the Company would otherwise be required to file reports as set forth above. (c) Notwithstanding anything herein to the contrary, the Company will not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (4) of Section 6.01 hereof until 15 days after the date any report hereunder is due. Section 4.04. Compliance Certificate. (a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers' Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge, the Company has kept, observed, performed and fulfilled its obligations under this Indenture and is not in default in the performance or observance of any of the material terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred and be continuing, describing all such Defaults or Events of Default of which he or she may have knowledge and -50- what action the Company is taking or propose to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, premium, if any, or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto. To the extent required under the TIA, each Guarantor shall also deliver to the Trustee an Officers' Certificate meeting the requirements of this paragraph (a) with respect to such Guarantor. (b) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee, on or before the fifth Business Day after becoming aware of the occurrence of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. Section 4.05. Taxes. The Company shall pay, and shall cause each of their respective Subsidiaries to pay, prior to delinquency, any material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes. Section 4.06. Stay, Extension and Usury Laws. The Company and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted. Section 4.07. Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Debt and the issuance of Disqualified Stock), unless such Indebtedness is incurred by the Company or any Guarantor and, in each case, the Company's Consolidated Interest Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.0:1. (b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Debt"): (1) Indebtedness of the Company and of any Restricted Subsidiary under a Credit Facility in an aggregate principal amount at any one time outstanding not to exceed $400 million, which amount shall be permanently reduced by the amount of Net Available Cash from Asset Sales applied by the Company or any Restricted Subsidiary thereof to permanently repay any such Indebtedness; provided that no more than $100 million of the borrowings under such Credit Facility can be directly borrowed or guaranteed by Subsidiaries that are not Guarantors; -51- (2) Indebtedness of the Company or any Guarantor pursuant to the Notes (excluding any Additional Notes) and any Guarantee of the Notes and any notes (including Guarantees thereof) issued in exchange for the Notes pursuant to the Registration Rights Agreement; (3) Indebtedness of the Company or any Restricted Subsidiary outstanding on the date of this Indenture, and not otherwise referred to in this definition of "Permitted Debt;" (4) Indebtedness of the Company or any Guarantor pursuant to the Convertible Senior Subordinated Debentures outstanding on the date of the Issue Date, and any amount of Indebtedness issued pursuant to an over-allotment option with respect to the Convertible Senior Subordinated Debentures; (5) intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company or any Guarantor is the obligor on such Indebtedness and the obligee is a Foreign Subsidiary, such Indebtedness must be subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Guarantee, in the case of a Guarantor, pursuant to an intercompany note in the form of Exhibit G hereto or pursuant to another agreement containing substantially the same subordination provisions as those contained in Section 2.01 of Exhibit G hereto; and (b) (i) any subsequent issuance or transfer of Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary thereof (other than pursuant to a pledge under a Credit Facility pursuant to a Permitted Lien) and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (5); (6) guarantees of any Guarantor of Indebtedness of the Company or any of the Guarantors which is permitted to be incurred under this Indenture; (7) (a) obligations pursuant to Interest Rate Agreements, but only to the extent such obligations do not exceed the aggregate principal amount of the Indebtedness covered by such Interest Rate Agreements; (b) obligations under currency exchange contracts entered into in the ordinary course of business; (c) obligations pursuant to hedging arrangements (including, without limitation, swaps, caps, floors, collars, options and similar agreements) entered into in the ordinary course of business and not for speculative purposes; and (d) any guarantee of any of the foregoing; (8) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations (whether or not incurred pursuant to sale and leaseback transactions) or Purchase Money Obligations in an aggregate principal amount pursuant to this clause (8) not to exceed $30.0 million outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (8) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed; (9) Indebtedness of the Company or any Restricted Subsidiary in connection with (a) one or more standby letters of credit issued by the Company or a Restricted Subsidiary in the -52- ordinary course of business consistent with past practice and (b) other letters of credit, surety, performance, appeal or similar bonds, bankers' acceptances, completion guarantees or similar instruments pursuant to self-insurance and workers' compensation obligations; provided that, in each case contemplated by this clause (9), upon the drawing of such letters of credit or other instrument, such obligations are reimbursed within 30 days following such drawing and which obligations may be reimbursed through borrowings of Indebtedness permitted pursuant to this Section 4.07; provided, further, that with respect to clauses (a) and (b), such Indebtedness is not in connection with the borrowing of money or the obtaining of advances or credit; (10) Indebtedness of the Company to the extent the net proceeds thereof are promptly deposited to defease or satisfy the Notes pursuant to Article Eight or Article Eleven; (11) Indebtedness of the Company or any Restricted Subsidiary arising from agreements for indemnification or purchase price adjustment obligations or similar obligations, earn-outs or other similar obligations or from guarantees or letters of credit, surety bonds or performance bonds securing any obligation of the Company or a Restricted Subsidiary pursuant to such an agreement, in each case incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary; provided that the maximum assumable liability in respect of all such obligations shall at no time exceed the gross proceeds actually paid or received by the Company and any Restricted Subsidiary, including the Fair Market Value of non-cash proceeds; (12) Permitted Refinancing Indebtedness of the Company or any Guarantor issued in exchange for, or the net proceeds of which are used to renew, extend, substitute, refund, refinance or replace, any Indebtedness, including any Disqualified Stock, incurred pursuant to paragraph (a) of this Section 4.07 and clauses (2) and (3) of this paragraph (b) of this definition of "Permitted Debt;" and (13) Indebtedness owed to third party financing companies in the form of limited recourse obligations that finance receivables of customers of the Company or any Restricted Subsidiary in the ordinary course of business; provided that such Indebtedness is limited in an amount not in excess of 75% of such obligations in the aggregate of the total owed by customers of the Company or any Restricted Subsidiary to such third party financing companies; (14) Indebtedness with respect to Standard Receivables Undertakings; (15) Indebtedness incurred by a Foreign Subsidiary, which may but is not required to be incurred under the Senior Credit Facilities, which, when aggregated with the principal amount of all other Indebtedness incurred pursuant to this clause (15) and then outstanding, does not exceed 25% of Consolidated Assets of the Foreign Subsidiaries; provided that at the time of the incurrence of any such Indebtedness the Company's Consolidated Interest Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.0:1; and (16) Indebtedness of the Company or any Restricted Subsidiary in addition to that described in clauses (1) through (15) above, and any renewals, extensions, substitutions, refinancings or replacements of such Indebtedness, so long as the aggregate principal amount of all such Indebtedness shall not exceed $35.0 million outstanding at any one time in the aggregate. -53- (c) For purposes of determining compliance with this Section 4.07, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness permitted by this Section 4.07, the Company in its sole discretion shall classify or reclassify such item of Indebtedness and only be required to include the amount of such Indebtedness as one of such types; provided that Indebtedness under the Senior Credit Facilities which is in existence following the Issue Date, and any renewals, extensions, substitutions, refundings, refinancings or replacements thereof, in an amount not in excess of the amount permitted to be incurred pursuant to clause (1) of paragraph (b) above, shall be deemed to have been incurred pursuant to clause (1) of paragraph (b) above rather than paragraph (a) above. (d) Indebtedness permitted by this Section 4.07 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.07 permitting such Indebtedness. (e) Accrual of interest, accretion or amortization of original issue discount and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the accretion or payment of dividends on any Disqualified Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Stock or Preferred Stock shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.07; provided, in each such case, that the amount thereof as accrued shall be included in the calculation of the Consolidated Interest Coverage Ratio of the Company. (f) For purposes of determining compliance of any non-U.S. dollar-denominated Indebtedness with this Section 4.07, the amount outstanding under any U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall at all times be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of the term Indebtedness, or first committed, in the cases of the revolving credit Indebtedness, provided, however, that if such Indebtedness is incurred to refinance other Indebtedness denominated in the same or different currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such indebtedness being refinanced. (g) If Indebtedness is secured by a letter of credit that serves only to secure such Indebtedness, then the total amount deemed incurred shall be equal to the greater of (x) the principal of such Indebtedness and (y) the amount that may be drawn under such letter of credit. (h) The amount of Indebtedness issued at a price less than the amount of the liability thereof shall be determined in accordance with GAAP. Section 4.08. Restricted Payments. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary to, directly or indirectly: (1) pay any dividend on, or make any distribution to holders of, any shares of the Company's Capital Stock (other than dividends or distributions payable solely in shares of the Company's Qualified Capital Stock or in options, warrants or other rights to acquire shares of such Qualified Capital Stock); -54- (2) purchase, redeem, defease or otherwise acquire or retire for value, directly or indirectly, the Company's Capital Stock or options, warrants or other rights to acquire such Capital Stock; (3) make any principal payment on, or repurchase, redeem, defease, retire or otherwise acquire for value or make any consent payment in connection with any amendment of, prior to any scheduled principal payment, sinking fund payment or maturity, any Subordinated Indebtedness, except a purchase, repurchase, redemption, defeasance or retirement within one year of final maturity thereof; (4) pay any dividend or distribution on any Capital Stock of any Restricted Subsidiary to any Person (other than (a) to the Company or any of its Wholly Owned Restricted Subsidiaries or (b) dividends or distributions made by a Restricted Subsidiary on a pro rata basis to all stockholders of such Restricted Subsidiary); or (5) make any Investment in any Person (other than any Permitted Investments); (any of the foregoing actions described in clauses (1) through (5) above, other than any such action that is a Permitted Payment (as defined below), collectively, "Restricted Payments") (the amount of any such Restricted Payment, if other than cash, shall be the Fair Market Value of the assets proposed to be transferred as determined by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a Board Resolution), unless (1) immediately before and immediately after giving effect to such proposed Restricted Payment on a pro forma basis, no Default or Event of Default shall have occurred and be continuing and such Restricted Payment shall not be an event which is, or after notice or lapse of time or both, would be, an "event of default" under the terms of any Indebtedness of the Company or its Restricted Subsidiaries; (2) immediately before and immediately after giving effect to such Restricted Payment on a pro forma basis, the Company could incur $1.00 of additional Indebtedness (i.e., the Company's Consolidated Interest Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.0:1) (other than Permitted Debt) under paragraph (a) of Section 4.07 hereof; and (3) after giving effect to the proposed Restricted Payment, the aggregate amount of all such Restricted Payments declared or made after the date of this Indenture and all Designation Amounts does not exceed the sum of: (A) 50% of the aggregate Consolidated Net Income of the Company accrued on a cumulative basis during the period beginning on the first day of the Company's fiscal quarter beginning after the date of this Indenture and ending on the last day of the Company's last fiscal quarter ending prior to the date of the Restricted Payment (or, if such aggregate cumulative Consolidated Net Income shall be a loss, minus 100% of such loss); (B) the aggregate Net Cash Proceeds, or the Fair Market Value of property other than cash, received after the date of this Indenture by the Company either (1) as capital contributions in the form of common equity to the Company or (2) from the issuance or sale (other than to any of its Subsidiaries) of Qualified Capital Stock of the -55- Company or any options, warrants or rights to purchase such Qualified Capital Stock of the Company (except, in each case, to the extent such proceeds are used to purchase, redeem or otherwise retire Capital Stock or Subordinated Indebtedness as set forth below in clause (2) or (3) of paragraph (b) below) (and excluding the Net Cash Proceeds from the issuance of Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); (C) the aggregate Net Cash Proceeds received after the date of this Indenture by the Company (other than from any of its Subsidiaries) upon the exercise of any options, warrants or rights to purchase Qualified Capital Stock of the Company (and excluding the Net Cash Proceeds from the exercise of any options, warrants or rights to purchase Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); (D) the aggregate Net Cash Proceeds received after the date of this Indenture by the Company from the conversion or exchange, if any, of debt securities or Disqualified Stock of the Company or its Restricted Subsidiaries into or for Qualified Capital Stock of the Company plus, to the extent such debt securities or Disqualified Stock were issued after the date of this Indenture other than pursuant to the over-allotment option for the Convertible Senior Subordinated Debentures, the aggregate of Net Cash Proceeds from their original issuance (and excluding the Net Cash Proceeds from the conversion or exchange of debt securities or Disqualified Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); (E) (a) in the case of the disposition or repayment of any Investment constituting a Restricted Payment (including any Investment in an Unrestricted Subsidiary) made after the date of this Indenture, an amount (to the extent not included in Consolidated Net Income) equal to the lesser of the return of capital with respect to such Investment and the initial amount of such Investment, in either case, less the cost of the disposition of such Investment and net of taxes, and (b) in the case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary (as long as the designation of such Subsidiary as an Unrestricted Subsidiary was deemed a Restricted Payment), the Fair Market Value of the Company's interest in such Subsidiary; provided that such amount shall not in any case exceed the amount of the Restricted Payment deemed made at the time the Subsidiary was designated as an Unrestricted Subsidiary; and (F) any amount which previously qualified as a Restricted Payment on account of any guarantee entered into by the Company or any Restricted Subsidiary; provided that such guarantee has not been called upon and the obligation arising under such guarantee no longer exists. (b) Notwithstanding the foregoing, and in the case of clauses (2) through (11) below, so long as no Default or Event of Default is continuing or would arise therefrom, the foregoing provisions shall not prohibit the following actions (each of clauses (1) through (5) and clauses (9) through (11) being referred to as a "Permitted Payment"): -56- (1) the payment of any dividend within 60 days after the date of declaration thereof, if at such date of declaration such payment was permitted by the provisions of paragraph (a) of this Section 4.08 and such payment shall have been deemed to have been paid on such date of declaration and shall not have been deemed a "Permitted Payment" for purposes of the calculation required by paragraph (a) of this Section 4.08; (2) the purchase, repurchase, redemption, or other acquisition or retirement for value of any shares of any class of Capital Stock of the Company in exchange for (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares or scrip), or out of the Net Cash Proceeds of a substantially concurrent issuance and sale for cash (other than to a Subsidiary) of, other shares of Qualified Capital Stock of the Company; provided that the Net Cash Proceeds from the issuance of such shares of Qualified Capital Stock shall be excluded from clause (3)(B) of paragraph (a) of this Section 4.08; (3) the purchase, repurchase, redemption, defeasance, satisfaction and discharge, retirement or other acquisition for value or payment of principal of any Subordinated Indebtedness in exchange for, or in an amount not in excess of the Net Cash Proceeds of, a substantially concurrent issuance and sale for cash (other than to any Subsidiary of the Company) of any Qualified Capital Stock of the Company, provided that the Net Cash Proceeds from the issuance of such shares of Qualified Capital Stock shall be excluded from clause (3)(B) of paragraph (a) of this Section 4.08; (4) the purchase, repurchase, redemption, defeasance, retirement, refinancing, acquisition for value or payment of principal of any Subordinated Indebtedness (other than Disqualified Stock) through the substantially concurrent issuance of Permitted Refinancing Indebtedness; (5) the repurchase, redemption, retirement or other acquisition for value of any Capital Stock of the Company held by any current or former officers, directors or employees of the Company or any of its Subsidiaries (or permitted transferees of such current or former officers, directors or employees) pursuant to the terms of agreements (including employment agreements) or plans approved by the Company's Board of Directors or any Committee thereof, including any such repurchase, redemption, acquisition or retirement of shares of such Capital Stock that is deemed to occur upon the exercise of stock options restricted shares or similar rights if such shares represent all or a portion of the exercise price or are surrendered in connection with satisfying federal income tax obligations; provided, however, that the aggregate amount of such repurchases, redemptions, retirements and acquisitions pursuant to this clause (5) (other than of shares of such Capital Stock that are deemed to occur upon the exercise of stock options, restricted shares or similar rights if such shares represent all or a portion of the exercise price or are surrendered in connection with satisfying federal income tax obligations) will not, in the aggregate, exceed $2.5 million per fiscal year (with unused amounts in any fiscal year being carried over to succeeding fiscal years subject to a maximum of $5.0 million in any fiscal year); (6) loans made to officers, directors or employees of the Company or any Restricted Subsidiary approved by the Board of Directors in an aggregate amount not to exceed $2.5 million outstanding at any one time, the proceeds of which are used solely (A) to purchase common stock of the Company in connection with a restricted stock or employee stock purchase plan, or to exercise stock options received pursuant to an employee or director stock option plan or other incentive plan, in a principal amount not to exceed the exercise price of such stock options or (B) -57- to refinance loans, together with accrued interest thereon, made pursuant to item (A) of this clause (6); (7) so long as no payment Default or Event of Default has occurred and is continuing or would result thereby, the payment of cash dividends on the Company's shares of common stock in the aggregate amount per fiscal quarter not to exceed $0.0125 per share for each share of common stock of the Company outstanding as of the one record date for dividends payable in respect of such fiscal quarter (as such amount shall be appropriately adjusted for any stock splits, stock dividends, reverse stock splits, stock consolidations and similar transactions); (8) the repurchase, redemption or other acquisition or retirement for value of any Convertible Senior Subordinated Debentures upon a "fundamental change" as defined in the Convertible Senior Subordinated Debenture Indenture; provided that all Notes tendered by holders of the Notes in connection with a Change of Control Offer or Prepayment Offer in connection with an Asset Sale, as applicable, have been repurchased, redeemed or acquired for value; (9) cash payments made in respect of the Convertible Senior Subordinated Debentures upon conversion in an amount not to exceed $10.0 million dollars during the term of the Notes plus any amount repaid with or exchanged or converted for Capital Stock; (10) Investments in a Receivables Subsidiary made in connection with a Qualified Receivables Transaction; and (11) Restricted Payments not exceeding $10.0 million in the aggregate. Section 4.09. Transactions with Affiliates. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with or for the benefit of any Affiliate of the Company (other than the Company or a Restricted Subsidiary) unless such transaction or series of related transactions is entered into in good faith and in writing and (1) such transaction or series of related transactions is on terms that are no less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that would be available in a comparable transaction in arm's-length dealings with a party who is not an Affiliate of the Company, (2) with respect to any transaction or series of related transactions involving an aggregate value in excess of $10.0 million or, for a multi-year transaction, involving an aggregate value in excess of $2.0 million per fiscal year, (A) the Company delivers an Officers' Certificate to the Trustee certifying that such transaction or series of related transactions complies with clause (1) above, and (B) such transaction or series of related transactions has been approved by a majority of the Disinterested Directors of the Board of Directors of the Company, or in the event there is only one Disinterested Director, by such Disinterested Director, or -58- (3) with respect to any transaction or series of related transactions involving an aggregate value in excess of $25.0 million or, for a multi-year transaction, involving an aggregate value in excess of $5.0 million per fiscal year, the Company delivers to the Trustee a written opinion of an investment banking firm of national standing or other recognized independent expert with experience appraising the terms and conditions of the type of transaction or series of related transactions for which an opinion is required stating that the transaction or series of related transactions is fair to the Company or such Restricted Subsidiary from a financial point of view; (b) However, paragraph (a) above shall not apply to: (1) employee benefit arrangements with any officer or director of the Company, including under any employment agreement, stock option or stock incentive plans, and customary indemnification arrangements with officers or directors of the Company, in each case entered into in the ordinary course of business, (2) the payment of reasonable and customary fees to directors of the Company or any of its Restricted Subsidiaries who are not employees of the Company or any Affiliate, (3) loans or advances to officers, directors and employees of the Company or any Restricted Subsidiary made in the ordinary course of business in an aggregate amount not to exceed $2.5 million outstanding at any one time, (4) any Restricted Payments made in compliance with Section 4.08 hereof, (5) any transactions undertaken pursuant to any contracts in existence on the Issue Date (as in effect on the Issue Date) and any renewals, replacements or modifications of such contracts (pursuant to new transactions or otherwise) on terms no less favorable to the Holders of the Notes than those in effect on the Issue Date, (6) any transaction with a Receivables Subsidiary effected as part of a Qualified Receivables Transaction on terms at least as favorable as would reasonably have been entered into at such time with an unaffiliated party, and (7) the issuance of Equity Interests (other than Disqualified Stock) of the Company to any Affiliate of the Company. Section 4.10. Liens. (a) The Company shall not, and shall not cause or permit any Restricted Subsidiary to, directly or indirectly, create, incur or affirm any Lien of any kind, other than Permitted Liens, upon any property or assets (including any intercompany notes) of the Company or any Restricted Subsidiary owned on the date of this Indenture or acquired after the date of this Indenture, or assign or convey, any right to receive any income or profits therefrom, unless (and until such Liens remain outstanding) the Notes (or a Guarantee in the case of Liens of a Guarantor) are directly secured equally and ratably with (or, in the case of Subordinated Indebtedness, prior or senior thereto, with the same relative priority as the Notes shall have with respect to such Subordinated Indebtedness) the obligation or liability secured by such Lien. (b) Notwithstanding the foregoing, any Lien securing the Notes or a Guarantee granted pursuant to paragraph (a) above shall be automatically and unconditionally released and -59- discharged upon: (i) any sale, exchange or transfer to any Person not an Affiliate of the Company of the property or assets secured by such Lien, (ii) any sale, exchange or transfer to any Person not an Affiliate of the Company of all of the Capital Stock held by the Company or any Restricted Subsidiary in, or all or substantially all the assets of, any Restricted Subsidiary creating such Lien, or (iii) with respect to any Lien securing a Guarantee, the release of such Guarantee in accordance with this Indenture. Section 4.11. Asset Sales. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets and property subject to such Asset Sale and (ii) 75% of the consideration paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to asset swaps) or the assumption by the purchaser of liabilities of the Company (other than liabilities of the Company that are by their terms subordinated to the Notes) or liabilities of any Guarantor that made such Asset Sale (other than liabilities of a Guarantor that are by their terms subordinated to such Guarantor's Guarantee), in each case as a result of which the Company and its remaining Restricted Subsidiaries are no longer liable for such liabilities ("Permitted Consideration"). (b) The Net Available Cash from Asset Sales by the Company or a Restricted Subsidiary may be applied by the Company or such Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Pari Passu Indebtedness of the Company or a Restricted Subsidiary), to: (1) repay Indebtedness of the Company under a secured Credit Facility with respect to the assets securing such Credit Facility or repay Indebtedness of a Foreign Subsidiary with the proceeds received with respect to assets of such Foreign Subsidiary; (2) reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary); or (3) purchase Notes or purchase both Notes and one or more series or issues of other Senior Indebtedness on a pro rata basis (excluding Notes and Senior Indebtedness owned by the Company or an Affiliate of the Company). (c) Any Net Available Cash from an Asset Sale not applied in accordance paragraph (b) above within 365 days from the date of such Asset Sale shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be required to make an offer to purchase Notes having an aggregate principal amount equal to the aggregate amount of Excess Proceeds (the "Prepayment Offer") at a purchase price (the "Prepayment Offer Price") equal to 100% of the principal amount of such Notes plus accrued and unpaid interest, if any, to the Asset Sale Purchase Date (as defined in paragraph (d) below) in accordance with the procedures (including prorating in the event of over subscription) set forth in this Indenture, but, if the terms of any Pari Passu Indebtedness require that a Pari Passu Offer be made contemporaneously with the Prepayment Offer, then the Excess Proceeds shall be prorated between the Prepayment Offer and such Pari Passu Offer in accordance with the aggregate outstanding principal amounts of the Notes and such Pari Passu Indebtedness, and the aggregate principal amount of Notes for which the Prepayment Offer is made shall be reduced accordingly. If the aggregate principal amount of Notes tendered by Holders thereof exceeds the amount of available Excess Proceeds, then such Excess Proceeds will be allocated pro rata according to the -60- principal amount of the Notes tendered and the Trustee will select the Notes to be purchased in accordance with this Indenture. To the extent that any portion of the amount of Excess Proceeds remains after compliance with the second sentence of this paragraph (c) and provided that all Holders of Notes have been given the opportunity to tender their Notes for purchase as described in paragraph (d) below in accordance with this Indenture, the Company and its Restricted Subsidiaries may use such remaining amount for purposes permitted by this Indenture and the amount of Excess Proceeds will be reset to zero. (d) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an offer to purchase the Notes pursuant to paragraph (c) above, deliver a written Prepayment Offer notice to the Holders of the Notes (the "Prepayment Offer Notice"), accompanied by such information regarding the Company and its Subsidiaries as the Company believes will enable such Holders of the Notes to make an informed decision with respect to the Prepayment Offer. The Prepayment Offer Notice will state, among other things: (1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture; (2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Asset Sale Purchase Date) pursuant to the Prepayment Offer shall cease to accrue interest on the Asset Sale Purchase Date; (3) that any Notes (or portions thereof) not properly tendered will continue to accrue interest; (4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the "Asset Sale Purchase Date"); (5) the aggregate principal amount of Notes to be purchased; (6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and (7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Prepayment Offer. (e) If the Company becomes obligated to make a Prepayment Offer pursuant to clause (c) above, the Notes and the Pari Passu Indebtedness shall be purchased by the Company, at the option of the holders thereof, in whole or in part in amounts of $1,000 or whole multiples of $1,000 in excess thereof, on the Asset Sale Purchase Date. (f) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations thereunder to the extent such laws and regulations are applicable in connection with the purchase of Notes as described above. To the extent that the provisions of any securities laws or regulations conflict with the provisions relating to the Prepayment Offer, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.11 by virtue thereof. (g) Holders electing to have Notes purchased hereunder will be required to surrender such Notes at the address specified in the notice prior to the Asset Sale Purchase Date. Holders will be -61- entitled to withdraw their election to have their Notes purchased pursuant to this Section 4.11 if the Company receives, not later than one Business Day prior to the Asset Sale Purchase Date, a telegram, telex, facsimile transmission or letter setting forth (1) the name of the Holder, (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted, (3) the principal amount of the Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which his election is to be withdrawn, (4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased, and (5) the principal amount, if any, of such Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Prepayment Offer Notice and that has been or will be delivered for purchase by the Company. (h) The Company shall (i) not later than the Asset Sale Purchase Date accept for payment Notes or portions thereof tendered pursuant to the Prepayment Offer, (ii) not later than 10:00 a.m. (New York time) on the Asset Sale Purchase Date deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Prepayment Offer Price, as the case may be, of all the Notes or portions thereof which are to be purchased on that date and (iii) not later than 10:00 a.m. (New York time) on the Asset Sale Purchase Date, as the case may be, deliver to the Paying Agent an Officers' Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Prepayment Offer Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Paying Agent at the Company's expense to the Holder thereof. For purposes of this Section 4.11, the Company shall choose a Paying Agent which shall not be the Company. Subject to applicable escheat laws, the Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed, together with interest, if any, thereon (subject to Section 7.01(f)), held by them for the payment of the Prepayment Offer Price, as the case may be; provided, however, that (x) to the extent that the aggregate amount of cash deposited by the Company with the Trustee in respect of a Prepayment Offer, as the case may be, exceeds the aggregate Prepayment Offer Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Asset Sale Purchase Date, as the case may be, the Trustee shall return any such excess to the Company together with interest or dividends, if any, thereon (subject to Section 7.01(f)). (i) Notes to be purchased shall, on the Asset Sale Purchase Date, become due and payable at the Prepayment Offer Price, as the case may be, and from and after such date (unless the Company shall default in the payment of the Prepayment Offer Price) such Notes shall cease to bear interest. Such Prepayment Offer Price shall be paid to such Holder promptly following the later of the Asset Sale Purchase Date and the time of delivery of such Note to the relevant Paying Agent at the office of such Paying Agent by the Holder thereof in the manner required. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Prepayment Offer Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Asset Sale Purchase Date shall be payable to the Person in whose name the Notes are registered as such on the relevant record dates according to the terms and the provisions of Section 2.04; provided further that Notes to be purchased are subject to proration in the event the Excess Proceeds are less than the aggregate Prepayment Offer Price of all Notes tendered for purchase, with such adjustments as may be appropriate by the Trustee so that only Notes in denominations of $1,000 or whole multiples of $1000 in excess thereof, shall be purchased. If any Note tendered for purchase shall not be so paid upon surrender thereof by deposit of funds with the Trustee or a Paying Agent in accordance with paragraph (i) above, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Asset -62- Sale Purchase Date at the rate borne by such Note. Any Note that is to be purchased only in part shall be surrendered to a Paying Agent at the office of such Paying Agent (with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing), and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased. The Company shall publicly announce the results of the Prepayment Offer, as the case may be, on or as soon as practicable after the Asset Sale Purchase Date. Section 4.12. Issuances of Guarantees by Restricted Subsidiaries. The Company shall provide to the Trustee, on or prior to the 30th day after the date that (i) any Person (other than a Foreign Subsidiary, a Receivables Subsidiary or Invatection Insurance Company or any other captive insurance Restricted Subsidiary) becomes a Restricted Subsidiary, (ii) any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, or (iii) any Restricted Subsidiary of the Company (which is not a Receivables Subsidiary or a Guarantor other than Invatection Insurance Company or any other captive insurance domestic Restricted Subsidiary) becomes a guarantor or obligor in respect of any Indebtedness of the Company or any of the domestic Restricted Subsidiaries, in each case, a supplemental indenture to this Indenture substantially in the form of Exhibit F hereto, executed by such Restricted Subsidiary, providing for a full and unconditional guarantee on a senior basis by such Restricted Subsidiary of the Company's obligations under the Notes and this Indenture to the same extent as that set forth in this Indenture. Section 4.13. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distribution on its Capital Stock, (2) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (3) make loans or advances to the Company or any other Restricted Subsidiary, or (4) sell, lease or transfer any of its properties or assets to the Company or any other Restricted Subsidiary. (b) However, paragraph (a) above shall not prohibit any encumbrance or restriction created, existing or becoming effective under or by reason of: (1) any agreement (including the Senior Credit Facilities) in effect on the date of this Indenture; (2) any agreement or instrument with respect to a Restricted Subsidiary that is not a Restricted Subsidiary of the Company on the date of this Indenture, in existence at the time such Person becomes a Restricted Subsidiary of the Company and not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary, provided that such encumbrances and restrictions are not applicable to the Company or any Restricted Subsidiary or -63- the properties or assets of the Company or any Restricted Subsidiary other than such Subsidiary which is becoming a Restricted Subsidiary; (3) any agreement or instrument governing any Acquired Debt or other agreement of any entity or related to assets acquired by or merged into or consolidated with the Company or any Restricted Subsidiaries, so long as such encumbrance or restriction (A) was not entered into in contemplation of the acquisition, merger or consolidation transaction, and (B) is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired, so long as the agreement containing such restriction does not violate any other provision of this Indenture; (4) existing under applicable law or any requirement of any regulatory body; (5) encumbrance or restriction pursuant to the security documents evidencing any Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.10 hereof that limit the right of the debtor to dispose of the assets subject to such Liens; (6) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Company or any Restricted Subsidiary, or customary restrictions in licenses relating to the property covered thereby and entered into in the ordinary course of business; (7) asset sale agreements permitted to be incurred under the provisions of Section 4.11 hereof that limit the transfer of such assets pending the closing of such sale; (8) shareholders', partnership or joint venture agreements entered into in the ordinary course of business; provided, however, that such restrictions do not apply to any Restricted Subsidiaries other than the applicable company, partnership or joint venture; and provided, further, however, that such encumbrances and restrictions may not materially impact the ability of the Company to permit payments on the Notes when due as required by the terms of this Indenture; (9) cash or other deposits or net worth, imposed by suppliers or landlords under contracts entered into in the ordinary course of business; (10) any other Credit Facility governing debt of the Company or any Guarantor, permitted to be incurred under the provisions of Section 4.07 hereof that are not (in the view of the Board of Directors of the Company as expressed in a Board Resolution thereof) materially more restrictive, taken as a whole, than those contained in the Senior Credit Facilities; and (11) under Indebtedness or other contractual requirements of a Receivables Subsidiary in connection with a Qualified Receivables Transaction; provided, however, that such restrictions apply only to such Receivables Subsidiary or the Receivables Assets that are subject to such Qualified Receivables Transaction; (12) any encumbrance or restriction in connection with a transaction of the type contemplated pursuant to clause (13) of the definition of Permitted Debt; and (13) encumbrance or restriction under any agreement, amendment, modification, restatement, renewal, supplement, refunding, replacement or refinancing that extends, renews, refinances or replaces the agreements containing the encumbrances or restrictions in the -64- foregoing clauses (1) through (12), or in this clause (13), provided that the terms and conditions of any such encumbrances or restrictions are no more restrictive in any material respect taken as a whole than those under or pursuant to the agreement evidencing the Indebtedness so extended, renewed, refinanced or replaced. Section 4.14. Sale Leaseback Transactions. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any Sale Leaseback Transaction; provided, that the Company or one of its Restricted Subsidiaries may enter into a Sale Leaseback Transaction if: (1) the Company or such Subsidiary could have incurred Indebtedness in an amount equal to the Attributable Indebtedness relating to such Sale Leaseback Transaction pursuant to the Consolidated Interest Coverage Ratio test set forth in paragraph (a) of Section 4.07 hereof; (2) the gross cash proceeds of such Sale Leaseback Transaction are at least equal to the Fair Market Value of the property that is the subject of such Sale Leaseback Transaction; and (3) the transfer of assets in such Sale Leaseback Transaction is permitted by, and the Company applies the proceeds of such transaction in the same manner and to the same extent as Net Available Cash and Excess Proceeds from an Asset Sale in compliance with, Section 4.11 hereof. Section 4.15. Lines of Business. Neither the Company nor any of its Restricted Subsidiaries will directly or indirectly engage in any line or lines of business activity other than that which is a Permitted Business. Section 4.16. Unrestricted Subsidiaries. (a) The Board of Directors of the Company may designate after the Issue Date any Subsidiary as an "Unrestricted Subsidiary" under this Indenture (a "Designation") only if: (1) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation; (2) (x) the Company would be permitted to make an Investment (other than a Permitted Investment) at the time of Designation (assuming the effectiveness of such Designation) pursuant to paragraph (a) of Section 4.08 hereof in an amount (the "Designation Amount") equal to the greater of (1) the net book value of the Company's interest in such Subsidiary calculated in accordance with GAAP or (2) the Fair Market Value of the Company's interest in such Subsidiary as determined in good faith by the Company's Board of Directors, or (y) the Designation Amount is less than $10,000; (3) the Company would be permitted under this Indenture to incur $1.00 of additional Indebtedness (other than Permitted Debt) pursuant to Section 4.07 hereof at the time of such Designation (assuming the effectiveness of such Designation); (4) such Unrestricted Subsidiary does not own any Capital Stock in any Restricted Subsidiary of the Company which is not simultaneously being designated an Unrestricted Subsidiary; -65- (5) such Unrestricted Subsidiary is not liable, directly or indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary Indebtedness, provided that an Unrestricted Subsidiary may provide a Guarantee for the Notes; and (6) such Unrestricted Subsidiary is not a party to any agreement, contract, arrangement or understanding at such time with the Company or any Restricted Subsidiary unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company or, in the event such condition is not satisfied, the value of such agreement, contract, arrangement or understanding to such Unrestricted Subsidiary shall be deemed a Restricted Payment. (b) In the event of any such Designation, the Company shall be deemed to have made an Investment constituting a Restricted Payment pursuant to Section 4.08 hereof, for all purposes of this Indenture, in the Designation Amount. (c) The Company shall not and shall not cause or permit any Restricted Subsidiary to at any time (1) provide credit support for, guarantee or subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness), provided, however, that this Section 4.16 shall not be deemed to prevent Permitted Investments in Unrestricted Subsidiaries that are otherwise allowed under this Indenture, or (2) be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary. (d) For purposes of the foregoing, the Designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed to be the Designation of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the Company will be classified as a Restricted Subsidiary. (e) The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a "Revocation") if: (1) no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; (2) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation would, if incurred at such time, have been permitted to be incurred for all purposes of this Indenture; and (3) unless such redesignated Subsidiary shall not have any Indebtedness outstanding (other than Indebtedness that would be Permitted Debt), immediately after giving effect to such proposed Revocation, and after giving pro forma effect to the incurrence of any such Indebtedness of such redesignated Subsidiary as if such Indebtedness was incurred on the date of the Revocation, the Company could incur $1.00 of additional Indebtedness (other than Permitted Debt) pursuant to Section 4.07 hereof. -66- (f) All Designations and Revocations must be evidenced by a Board Resolution of the Board of Directors of the Company and an Officers' Certificate delivered to the Trustee certifying compliance with the foregoing provisions of this Section 4.16. Section 4.17. Payments for Consent. Neither the Company nor any of its Restricted Subsidiaries shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid or is paid to all Holders of Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Section 4.18. Offer to Repurchase upon a Change of Control. (a) If a Change of Control occurs, each Holder of Notes shall have the right to require that the Company purchase all or any part (in amounts of $1,000 or whole multiples of $1,000 in excess thereof) of such Holder's Notes pursuant to the offer described below (the "Change of Control Offer"). In the Change of Control Offer, the Company shall offer to purchase all of the Notes, at a purchase price (the "Change of Control Purchase Price") in cash in an amount equal to 101% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to the date of purchase (the "Change of Control Purchase Date") (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date). (b) Within 30 days after any Change of Control or, at the Company's option, prior to such Change of Control but after it is publicly announced, the Company must notify the Trustee and give written notice of the Change of Control (the "Change of Control Purchase Notice") to each Holder of Notes at his address appearing in the security register. The Change of Control Purchase Notice must state, among other things: (1) that a Change of Control has occurred or will occur and the date of such event; (2) the circumstances and relevant facts regarding such Change of Control, including information with respect to pro forma historical income, cash flow and capitalization after giving effect to such Change of Control; (3) the Change of Control Purchase Price and the Change of Control Purchase Date, which shall be fixed by the Company on a Business Day no earlier than 30 days nor later than 60 days from the date the notice is mailed, or such later date as is necessary to comply with requirements under the Exchange Act; provided that the Change of Control Purchase Date may not occur prior to the Change of Control; (4) that any Note not tendered will continue to accrue interest; (5) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; and (6) other procedures that a Holder of Notes must follow to accept a Change of Control Offer or to withdraw acceptance of the Change of Control Offer. -67- (c) Upon receipt by the Company of the proper tender of Notes, the Holder of the Note in respect of which such proper tender was made shall (unless the tender of such Note is properly withdrawn at least one Business Day prior to the Change of Control Purchase Date) thereafter be entitled to receive solely the Change of Control Purchase Price with respect to such Notes. Upon surrender of any such Note for purchase in accordance with the foregoing provisions, such Note shall be paid by the Company at the Change of Control Purchase Price; provided, however, that installments of interest whose Stated Maturity is on or prior to the Change of Control Purchase Date shall be payable to the Holders of such Notes, registered as such on the relevant Regular Record Dates according to the terms and the provisions of Section 2.03. If any Note tendered for purchase in accordance with the provisions of this Section 4.18 shall not be so paid upon surrender thereof, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Change of Control Purchase Date at the rate borne by such Note. Holders electing to have Notes purchased will be required to surrender such Notes to the Paying Agent at the address specified in the Change of Control Purchase Notice at least one Business Day prior to the Change of Control Purchase Date. Any Note that is to be purchased only in part shall be surrendered to a Paying Agent at the office of such Paying Agent (with, if the Company, the Registrar or the Trustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Registrar or the Trustee, as the case may be, duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing), and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, one or more new Notes of any authorized denomination as requested by such Holder in an aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased. (d) The Company shall (i) not later than the Change of Control Purchase Date, accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) not later than 10:00 a.m. (New York time) on the Business Day following the Change of Control Purchase Date, deposit with the Trustee or with a Paying Agent an amount of money in same day funds sufficient to pay the aggregate Change of Control Purchase Price of all the Notes or portions thereof which have been so accepted for payment and (iii) not later than 10:00 a.m. (New York time) on the Business Day following the Change of Control Purchase Date, deliver to the Paying Agent an Officers' Certificate stating the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the Change of Control Purchase Price of the Notes purchased from each such Holder, and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly returned by the Paying Agent at the Company's expense to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer on the Change of Control Purchase Date. For purposes of this Section 4.18, the Company shall choose a Paying Agent which shall not be the Company. (e) A tender made in response to a Change of Control Purchase Notice may be withdrawn if the Company receives, not later than one Business Day prior to the Change of Control Purchase Date, a telegram, telex, facsimile transmission or letter, specifying, as applicable: (1) the name of the Holder; (2) the certificate number of the Note in respect of which such notice of withdrawal is being submitted; (3) the principal amount of the Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) delivered for purchase by the Holder as to which such notice of withdrawal is being submitted; -68- (4) a statement that such Holder is withdrawing his election to have such principal amount of such Note purchased; and (5) the principal amount, if any, of such Note (which shall be $1,000 or whole multiples of $1,000 in excess thereof) that remains subject to the original Change of Control Purchase Notice and that has been or will be delivered for purchase by the Company. (f) Subject to applicable escheat laws, the Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed, together with interest or dividends, if any, thereon (subject to Section 7.01(f) hereof), held by them for the payment of the Change of Control Purchase Price; provided, however, that (x) to the extent that the aggregate amount of cash deposited by the Company pursuant to clause (ii) of paragraph (d) above exceeds the aggregate Change of Control Purchase Price of the Notes or portions thereof to be purchased, then the Trustee shall hold such excess for the Company and (y) unless otherwise directed by the Company in writing, promptly after the Business Day following the Change of Control Purchase Date the Trustee shall return any such excess to the Company together with interest, if any, thereon (subject to Section 7.01(f) hereof). (g) The Company shall comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act, and any other applicable securities laws or regulations in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.18, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.18 by virtue of such conflict. (h) Notwithstanding the foregoing, the Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. Section 4.19. Corporate Existence. Subject to Article Five, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect the corporate existence, rights (charter and statutory) and franchises of the Company and each Subsidiary; provided that the Company shall not be required to preserve any such right or franchise or to preserve the existence of any Subsidiary if the Board of Directors of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries as a whole and that the loss thereof is not disadvantageous in any material respect to the Holders. ARTICLE FIVE SUCCESSORS Section 5.01. Consolidation, Merger and Sale of Assets. (a) The Company will not, in a single transaction or through a series of related transactions, consolidate with or merge with or into any other Person or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets to any Person or group of Persons, or permit any of its Restricted Subsidiaries to enter into any such transaction or series of transactions, if such transaction or series of transactions, in the aggregate, would result in a sale, assignment, conveyance, transfer, lease or disposition of all or substantially all of the properties and assets -69- of the Company and its Restricted Subsidiaries on a Consolidated basis to any other Person or group of Persons (other than the Company or a Guarantor), unless at the time and after giving effect thereto: (1) either (a) the Company will be the continuing corporation or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, conveyance, transfer, lease or disposition all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries on a Consolidated basis (the "Surviving Entity") will be a corporation or limited liability company duly organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and such Person expressly assumes, by a supplemental indenture, in a form reasonably satisfactory to the Trustee, all the obligations of the Company under the Notes and this Indenture, and the Notes and this Indenture will remain in full force and effect as so supplemented (and any Guarantees will be confirmed as applying to such Surviving Entity's obligations); (2) immediately before and immediately after giving effect to such transaction on a pro forma basis (and treating any Indebtedness not previously an obligation of the Company or any of its Restricted Subsidiaries which becomes the obligation of the Company or any of its Restricted Subsidiaries as a result of such transaction as having been incurred at the time of such transaction), no Default or Event of Default will have occurred and be continuing; (3) immediately before and immediately after giving effect to such transaction on a pro forma basis (on the assumption that the transaction occurred on the first day of the four-quarter period for which financial statements are available ending immediately prior to the consummation of such transaction with the appropriate adjustments with respect to the transaction being included in such pro forma calculation), the Company (or the Surviving Entity if the Company is not the continuing obligor under this Indenture) could incur $1.00 of additional Indebtedness (other than Permitted Debt) under Section 4.07 hereof; (4) at the time of the transaction, each Guarantor, if any, unless it is the other party to the transactions described above, will have by supplemental indenture confirmed that its Guarantee shall apply to such Person's obligations under this Indenture and the Notes; (5) at the time of the transaction, if any of the property or assets of the Company or any of its Restricted Subsidiaries would thereupon become subject to any Lien, Section 4.10 hereof is complied with; and (6) at the time of the transaction, the Company or the Surviving Entity will have delivered, or caused to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger, transfer, sale, assignment, conveyance, lease or other transaction and the supplemental indenture in respect thereof comply with this Indenture and that all conditions precedent provided in this Indenture relating to such transaction have been complied with. (b) Except as provided under Section 10.04 hereof, each Guarantor will not, and the Company will not permit a Guarantor to, in a single transaction or through a series of related transactions, consolidate with or merge with or into any other Person (other than the Company or any other Guarantor) unless at the time and after giving effect thereto: (1) either (a) the Guarantor will be the continuing Person in the case of a consolidation or merger involving the Guarantor or (b) the Person (if other than the Guarantor) -70- formed by such consolidation or into which such Guarantor is merged (the "Surviving Guarantor Entity") will be a corporation, limited liability company, limited liability partnership, partnership, trust or other entity duly organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia and such Person expressly assumes, by a supplemental indenture, in a form reasonably satisfactory to the Trustee, all the obligations of such Guarantor under its Guarantee of the Notes and this Indenture, and such Guarantee and this Indenture will remain in full force and effect; (2) immediately before and immediately after giving effect to such transaction on a pro forma basis, no Default or Event of Default will have occurred and be continuing; and (3) at the time of the transaction such Guarantor or the Surviving Guarantor Entity will have delivered, or caused to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each to the effect that such consolidation or merger and the supplemental indenture in respect thereof comply with this Indenture and that all conditions precedent provided in this Indenture relating to such transaction have been complied with; provided, however, that this paragraph shall not apply to any Guarantor whose Guarantee of the Notes is unconditionally released and discharged in accordance with Section 10.04 hereof. (c) Notwithstanding the foregoing, the Company or any Guarantor may merge with an Affiliate incorporated or organized solely for the purpose of reincorporating or reorganizing the Company or Guarantor in another jurisdiction to realize tax or other benefits. ARTICLE SIX DEFAULTS AND REMEDIES Section 6.01. Events of Default. An "Event of Default" will occur under this Indenture (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) if: (1) there shall be a default in the payment of any interest on any Note when it becomes due and payable, and such default shall continue for a period of 30 days; (2) there shall be a default in the payment of the principal of (or premium, if any, on) any Note at its Maturity (upon acceleration, optional or mandatory redemption, if any, required repurchase or otherwise); (3) there shall be a default in the performance or breach of the provisions of Article Five, the Company shall have failed to make or consummate a Prepayment Offer in accordance with Section 4.11 hereof, or the Company shall have failed to make or consummate a Change of Control Offer in accordance with Section 4.18 hereof; (4) there shall be a default in the performance, or breach, of any covenant or agreement of the Company or any Guarantor under this Indenture or any Guarantee (other than a default in the performance, or breach, of a covenant or agreement which is specifically dealt with in clause (1), (2) or (3) above) and such default or breach shall continue for a period of 60 days -71- after written notice has been given, by overnight delivery, (1) to the Company by the Trustee or (2) to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes; (5) (a) any default in the payment of the principal, premium, if any, or interest on any Indebtedness shall have occurred under any of the agreements, indentures or instruments under which the Company, any Guarantor or any other Restricted Subsidiary then has outstanding Indebtedness in excess of $25.0 million when the same shall become due and payable in full and such default shall have continued after any applicable grace period and shall not have been cured or waived and, if not already matured at its final maturity in accordance with its terms, the holder of such Indebtedness shall have the right to accelerate such Indebtedness or (b) an event of default as defined in any of the agreements, indentures or instruments described in clause (a) of this clause (5) shall have occurred and the Indebtedness thereunder, if not already matured at its final maturity in accordance with its terms, shall have been accelerated; (6) any Guarantee shall for any reason cease to be, or shall for any reason be asserted in writing by any Guarantor or the Company not to be, in full force and effect and enforceable in accordance with its terms, except to the extent contemplated by this Indenture and any such Guarantee including any release of Guarantee pursuant to Section 10.04; (7) one or more judgments, orders or decrees of any court or regulatory or administrative agency for the payment of money in excess of $25.0 million, either individually or in the aggregate, shall be rendered against the Company, any Guarantor or any other Restricted Subsidiary or any of their respective properties and shall not be discharged and either (a) any creditor shall have commenced an enforcement proceeding upon such judgment, order or decree or (b) there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal or otherwise, shall not be in effect; (8) the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company or any Significant Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustments or composition of or in respect of the Company or any Significant Subsidiary under any Bankruptcy Law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or any Significant Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or (9) the institution by the Company or any Significant Subsidiary of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any Bankruptcy Law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or any Significant Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due. Section 6.02. Acceleration. (a) If an Event of Default (other than as specified in Section 6.01(8) or (9) above with respect to the Company) shall occur and be continuing with respect to this Indenture, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding may, and -72- the Trustee at the request of such Holders shall, declare all unpaid principal of, premium, if any, and accrued interest on all Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders of the Notes) and upon any such declaration, such principal, premium, if any, and interest shall become due and payable immediately. If an Event of Default specified in Section 6.01(8) or (9) above with respect to the Company occurs and is continuing, then all the Notes shall ipso facto become due and payable immediately in an amount equal to the principal amount of the Notes, together with accrued and unpaid interest, if any, to the date the Notes become due and payable, without any declaration or other act on the part of the Trustee or any Holder of Notes. Thereupon, the Trustee may, at its discretion, proceed to protect and enforce the rights of the Holders of Notes by appropriate judicial proceedings. (b) After a declaration of acceleration, but before a judgment or decree for payment of the money due has been obtained by the Trustee, the Holders of a majority in aggregate principal amount of Notes outstanding by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (1) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all sums paid or advanced by the Trustee under this Indenture and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, (B) all overdue interest on all Notes then outstanding, (C) the principal of, and premium, if any, on any Notes then outstanding which have become due otherwise than by such declaration of acceleration and interest thereon at the rate borne by the Notes and (D) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate borne by the Notes; (2) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and (3) all Events of Default, other than the non-payment of principal of, premium, if any, and interest on the Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in this Indenture. No such rescission shall affect any subsequent default or impair any right consequent thereon. (c) In the case of any Event of Default occurring by reason of any willful action or inaction taken or not taken by or on behalf of the Company with the intention of avoiding payment of the premium that the Company would have had to pay if the Company then had elected to redeem the Notes pursuant to the optional redemption provisions of this Indenture, an equivalent premium shall also become and be immediately due and payable to the extent permitted by law upon the acceleration of the Notes. If an Event of Default occurs during any time that the Notes are outstanding, by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding the premium payable upon optional redemption of the Notes, then the premium specified in this Indenture shall also become immediately due and payable to the extent permitted by law upon the acceleration of the Notes. Section 6.03. Other Remedies. (a) If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. -73- (b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon and during the continuance of an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law. Section 6.04. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the Notes outstanding may on behalf of the Holders of all outstanding Notes waive any past Default or Event of Default under this Indenture and its consequences, except a Default or Event of Default (1) in the payment of the principal of, premium, if any, or interest on any Note (which may only be waived with the consent of each Holder of Notes affected) or (2) in respect of a covenant or provision which under this Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment. The Company shall deliver to the Trustee an Officers' Certificate stating that the requisite percentage of Holders have consented to such waiver and attaching copies of such consents. In case of any such waiver, the Company, the Trustee and the Holders shall be restored to their former positions and rights hereunder and under the Notes, respectively. This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture and the Notes, as permitted by the TIA. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Section 6.05. Control by Majority. Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. Section 6.06. Limitation on Suits. (a) A Holder has a right to institute any proceeding with respect to this Indenture, or the Notes or any Guarantees, only if: (1) the Holder gives to the Trustee written notice of a continuing Event of Default; (2) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy; (3) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee reasonable indemnity against any loss, liability or expense that might be incurred by it in connection with the request or direction; (4) the Trustee does not comply with the request within 15 days after receipt of the request and the offer and, if requested, the provision of indemnity; and -74- (5) during such 15-day period the Holders of a majority in principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with the written request. (b) A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note. Section 6.07. Rights of Holders of Notes to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, or interest on such Note, on or after the respective due dates expressed in such Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. Section 6.08. Collection Suit by Trustee. If an Event of Default specified in Section 6.01(1) or (2) above occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of overdue principal of, premium, if any, interest remaining unpaid on the Notes and interest on overdue principal and premium, if any, and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. Section 6.09. Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company or any Guarantor (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other securities or property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 6.10. Priorities. (a) If the Trustee collects any money or other property pursuant to this Article Six, it shall pay out the money and other property in the following order: -75- First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection; Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and Third: to the Company or to such party as a court of competent jurisdiction shall direct. (b) The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10. Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than ten percent in principal amount of the then outstanding Notes. ARTICLE SEVEN TRUSTEE Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, and is actually known to the Trustee, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) Except during the continuance of an Event of Default: (i) the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied duties, covenants or obligations shall be read into this Indenture against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture, but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture, but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein. This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a) is hereby expressly excluded from this Indenture, as permitted by the TIA. -76- (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (i) this Section 7.01(c) does not limit the effect of Sections 7.01(b) and 7.01(g); (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof. Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the TIA. (d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Section 7.01. (e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (f) Money held by the Trustee in trust hereunder need not be segregated from other funds, except to the extent required by law. The Trustee (acting in any capacity hereunder) shall be under no liability for interest on any money received by it hereunder unless otherwise agreed in writing with the Company (provided that any interest earned on money held by the Trustee in trust hereunder shall be the property of the Company). (g) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Section 7.02. Certain Rights of Trustee. Subject to the provisions of Section 7.01: (a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers' Certificate or an Opinion of Counsel; -77- (c) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (d) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith which it believes to be authorized or within its rights or powers conferred under this Indenture; (e) the Trustee may consult with counsel selected by it and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (f) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby; (g) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (h) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to, during regular business hours, examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; (i) except with respect to Section 4.01, the Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article 4. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or Event of Default occurring pursuant to Sections 6.01(1) or 6.01(2) or (ii) any Default or Event of Default of which the Trustee shall have received written notification or obtained actual knowledge; (j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; (k) the Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; (l) the permissive rights of the Trustee to take certain actions under this Indenture shall not be construed as a duty unless so specified herein; and -78- (m) delivery of reports, information and documents to the Trustee under Section 4.03 is for informational purposes only and the Trustee's receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). (n) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. Section 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11 hereof. Section 7.04. Trustee's Disclaimer. The Trustee makes no representation as to, and shall have no responsibility for, the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company's use or application by the Company of the Notes or of the proceeds from the Notes, it shall not be responsible for the correctness of any statement in the registration statement for the Notes under the Securities Act or in any offering document for the Notes, the Indenture or the Notes (other than its certificate of authentication), or the determination as to which beneficial owners are entitled to receive any notices hereunder. Section 7.05. Notice of Default. If a Default or Event of Default occurs and if it is known to the Trustee, the Trustee shall give to each Holder notice of the Default or Event of Default (and, to the extent applicable, notice if any payment is due with respect to Section 6.03) within 90 days after it occurs or, if later, within 15 days after it is known to the Trustee, unless such Default or Event of Default shall have been cured or waived before the giving of such notice. Notwithstanding the preceding sentence, except in the case of a Default or Event of Default described in clauses (1) and (2) of Section 6.01, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interest of the Holders. The preceding sentence shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is hereby expressly excluded from this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have knowledge of a Default or Event of Default unless a Responsible Officer of the Trustee has received written notice of such Default or Event of Default, which notice specifically references this Indenture and the Notes. Section 7.06. Reports by Trustee to Holders of the Notes. (a) Within 60 days after each December 31 beginning with December 31, 2007, the Trustee shall deliver to the Holders of the Notes a brief report dated as of such December 31 that complies with TIA Section 313(a) if required by such Section 313(a). The Trustee shall also comply with TIA Section 313(b). Any reports required by this Section 7.06 shall be transmitted by mail to the Holder of the Notes pursuant to TIA Section 313(c). -79- (b) A copy of each report at the time of its delivery to the Holders of Notes shall be filed with the Commission and each securities exchange, if any, on which the Notes are listed. The Company agrees to notify the Trustee promptly whenever the Notes become listed on any securities exchange and of any delisting thereof. Section 7.07. Compensation and Indemnity. The Company agrees: (a) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited (to the extent permitted by law) by any provision of law in regard to the compensation of a trustee of an express trust); (b) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses, advances and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own negligence, willful misconduct or bad faith; and (c) to indemnify the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any loss, damage, claim, liability, cost or expense (including reasonable attorney's fees and expenses, and taxes (other than taxes based upon, measured by or determined by the income of the Trustee)) incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder. To secure the Company's payment obligations in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay the principal amount of and interest on the Notes. The Company's payment, reimbursement and indemnity obligations pursuant to this Section 7.07 shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the Trustee and the termination of this Indenture for any reason. In addition to and without prejudice to its rights hereunder, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(8) or Section 6.01(9), the expenses, including the reasonable charges and expenses of its counsel and the compensation for services payable pursuant to Section 7.07(a), are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or similar laws. For the purposes of this Section 7.07, the "Trustee" shall include any predecessor Trustee; provided, however, that except as may be otherwise agreed among the parties, the negligence, willful misconduct or bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder. Section 7.08. Replacement of Trustee. (a) The Trustee may resign at any time by so notifying the Company; provided, however, no such resignation shall be effective until a successor Trustee has accepted its appointment -80- pursuant to this Section 7.08. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding may remove the Trustee by so notifying the Trustee and the Company in writing. The Company shall remove the Trustee if:: (i) the Trustee fails to comply with Section 7.10 hereof; (ii) the Trustee is adjudged bankrupt or insolvent; (iii) a receiver or public officer takes charge of the Trustee or its property; or (iv) the Trustee becomes incapable of acting. (b) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint, by a resolution of the Board of Directors, a successor Trustee. (c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company satisfactory in form and substance to the retiring Trustee and the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07. (d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate principal amount of the Notes at the time outstanding may petition any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee. (e) If the Trustee fails to comply with Section 7.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (f) So long as no Default or Event of Default shall have occurred and be continuing, if the Company shall have delivered to the Trustee (i) a Board Resolution appointing a successor Trustee, effective as of a date at least 30 days after delivery of such Resolution to the Trustee, and (ii) an instrument of acceptance of such appointment, effective as of such date, by such successor Trustee in accordance with this Indenture, the Trustee shall be deemed to have resigned as contemplated in this Section 7.08, the successor Trustee shall be deemed to have been accepted as contemplated in this Indenture, all as of such date, and all other provisions of this Indenture shall be applicable to such resignation, appointment and acceptance. Section 7.09. Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business or assets to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Trustee, subject to Sections 7.10 and 7.11. Section 7.10. Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under -81- such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has (or its corporate parent shall have) a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b). Section 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. ARTICLE EIGHT DEFEASANCE AND COVENANT DEFEASANCE Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at its option and at any time, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article Eight. Section 8.02. Legal Defeasance and Discharge. Upon the Company's exercise of the option applicable to this Section 8.02, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations with respect to all outstanding Notes and all obligations of the Guarantors shall be deemed to have been discharged with respect to their obligations under the Guarantees on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes and Guarantees, respectively, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (a) and (b) below, and to have satisfied all of their other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive solely from Funds in Trust (as defined in Section 8.04 hereof and as more fully set forth in such Section) payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (b) subject to the preceding clause (a), the Company's obligations with respect to such Notes under Article Two and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof. Section 8.03. Covenant Defeasance. Upon the Company's exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its obligations, and each Restricted Subsidiary shall be released from its obligations, under the covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.18 and 5.01 hereof with respect to the outstanding Notes on and after the date the conditions -82- set forth in Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company and each Restricted Subsidiary may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company's exercise under Section 8.01 hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through (7) shall not constitute Events of Default. Section 8.04. Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes: (a) the Company must irrevocably deposit or cause to be deposited with the Trustee, in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes cash in United States dollars, U.S. Government Obligations, or a combination thereof ("Funds in Trust"), in such amounts as, in the aggregate, will be sufficient, in the opinion of a nationally recognized firm of independent public accountants or a nationally recognized investment banking firm, to pay and discharge the principal of, premium, if any, and interest on the outstanding Notes on the Stated Maturity (or on any date after February 15, 2011 (such date being referred to as the "Defeasance Redemption Date"), if at or prior to electing either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on the Defeasance Redemption Date); (b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an opinion of independent counsel in the United States stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel in the United States shall confirm that, the Holders and Beneficial Owners of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an opinion of independent counsel in the United States to the effect that the Holders and Beneficial Owners of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (d) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or insofar as clause (8) or (9) of Section 6.01 is concerned, at any time during the period ending on the 91st day after the date of deposit; -83- (e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a Default under, this Indenture or any other material agreement or instrument to which the Company, any Guarantor or any Restricted Subsidiary is a party or by which it is bound; (f) such Legal Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; (g) the Company shall have delivered to the Trustee an opinion of independent counsel in the United States to the effect that (assuming no Holder of the Notes would be considered an insider of the Company or any Guarantor under any applicable bankruptcy or insolvency law and assuming no intervening bankruptcy or insolvency of the Company or any Guarantor between the date of deposit and the 91st day following the deposit) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; (h) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Notes or any Guarantee over the other creditors of the Company or any Guarantor with the intent of defeating, hindering, delaying or defrauding creditors of the Company, any Guarantor or others; (i) no event or condition shall exist that would prevent the Company from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 91st day after the date of such deposit; and (j) the Company will have delivered to the Trustee an Officers' Certificate and an opinion of independent counsel, each stating that all conditions precedent provided for relating to either the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with. Section 8.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. (a) Subject to Section 8.06 hereof, all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law. (b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. (c) Anything in this Article Eight to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants, investment bank, or appraisal firm -84- expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. Section 8.06. Repayment to the Company. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company upon its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company. Section 8.07. Reinstatement. If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. Government Obligations in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations to make the related payments under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company make any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent. ARTICLE NINE AMENDMENT, SUPPLEMENT AND WAIVER Section 9.01. Without Consent of Holders of Notes. (a) Notwithstanding Section 9.02 hereof, the Company, any Guarantor, any other obligor under the Notes and the Trustee may modify, supplement or amend this Indenture or the Notes without the consent of any Holder of a Note: (1) to evidence the succession of another Person to the Company, a Guarantor, or any other obligor under the Notes, and the assumption by any such successor of the covenants of the Company, such Guarantor or such obligor in this Indenture and in the Notes and in any Guarantee in accordance with Section 5.01 hereof; (2) to add to the covenants of the Company, any Guarantor or any other obligor under the Notes for the benefit of the Holders of the Notes or to surrender any right or power conferred upon the Company or any Guarantor or any other obligor under the Notes, as applicable, in this Indenture, in the Notes or in any Guarantee; -85- (3) to cure any ambiguity, or to correct or supplement any provision in this Indenture, the Notes or any Guarantee which may be a mistake or inconsistent with any other provision in this Indenture, the Notes or any Guarantee; (4) to make any provision with respect to matters or questions arising under this Indenture, the Notes or any Guarantee, provided that such provisions shall not adversely affect the interest of the Holders of the Notes in any material respect; (5) to add a Guarantor or additional obligor under this Indenture or permit any Person to guarantee the Notes and/or obligations under this Indenture; (6) to release a Guarantor as provided in this Indenture; (7) to evidence and provide the acceptance of the appointment of a successor Trustee under this Indenture; (8) to mortgage, pledge, hypothecate or grant a security interest in favor of the Trustee for the benefit of the Holders of the Notes as additional security for the payment and performance of the Company's and any Guarantor's obligations under this Indenture, in any property, or assets, including any of which are required to be mortgaged, pledged or hypothecated, or in which a security interest is required to be granted to or for the benefit of the Trustee pursuant to this Indenture or otherwise; (9) to provide for the issuance of Additional Notes under this Indenture in accordance with the limitations set forth in this Indenture; (10) to conform any non-conforming language or defined terms in the text of this Indenture, the Guarantees or the Notes to any provision of the "Description of Notes" section of the Offering Memorandum so that such provision in the "Description of Notes" section reflects a verbatim recitation of a provision of this Indenture; or (11) to comply with the rules of any applicable securities depositary. (b) Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the Trustee of the documents described in Section 12.04 and Section 9.06 hereof, the Trustee shall join with the Company in the execution of any amended or supplemental Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental Indenture that affects its own rights, duties or immunities under this Indenture or otherwise. Section 9.02. With Consent of Holders of Notes. (a) Except as provided below in this Section 9.02, the Company, any Guarantor, any other obligor under the Notes and the Trustee may amend or supplement this Indenture or the Notes with the consent of the Holders of at least a majority in aggregate principal amount of the Notes (including Additional Notes, if any) then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including Additional Notes, if any) (including, without limitation, consents obtained -86- in connection with a purchase of, or tender offer or exchange offer for, Notes). However, without the consent of each Holder, an amendment or waiver under this Section 9.02 may not: (1) change the Stated Maturity of the principal of, or any installment of interest on, or change to an earlier date any redemption date of, or waive a default in the payment of the principal of, premium, if any, or interest on, any such Note or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change the coin or currency in which the principal of any such Note or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment after the Stated Maturity thereof (or, in the case of redemption, on or after the redemption date); (2) reduce the percentage in principal amount of such outstanding Notes, the consent of whose Holders is required for any such amendment or supplemental indenture, or the consent of whose Holders is required for any waiver or compliance with certain provisions of this Indenture; (3) modify any of the provisions relating to supplemental indentures requiring the consent of Holders or relating to the waiver of past defaults or relating to the waiver of certain covenants, except to increase the percentage of such outstanding Notes required for such actions or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each such Note affected thereby; (4) except as otherwise permitted under Section 5.01 hereof, consent to the assignment or transfer by the Company or any Guarantor of any of its rights and obligations under this Indenture; (5) voluntarily release, other than in accordance with this Indenture, the Guarantee of any Guarantor; or (6) amend or modify any of the provisions of this Indenture in any manner which subordinates the Notes issued hereunder in right of payment to any other Indebtedness of the Company or which subordinates any Guarantee in right of payment to any other Indebtedness of the Guarantor issuing any such Guarantee. (b) The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or its duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be canceled and of no further effect. (c) Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.06 and Section 12.04 hereof, the Trustee shall join with the Company in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. -87- (d) It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof. (e) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall deliver to the Holders of Notes a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to deliver such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Section 9.03. Compliance with Trust Indenture Act. Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental Indenture that complies with the TIA as then in effect. Section 9.04. Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder. Section 9.05. Notation on or Exchange of Notes. (a) The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver. (b) Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver. Section 9.06. Trustee to Sign Amendments, Etc. The Trustee shall sign any amended or supplemental indenture or Note authorized pursuant to this Article Nine if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. Neither the Company nor any Guarantor may sign an amendment or supplemental indenture or Note or Guarantee until its Board of Directors or trustees or sole member (or committee serving a similar function), as the case may be, approves it. In executing any amended or supplemental indenture or Note, the Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officers' Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture. -88- ARTICLE TEN GUARANTEES Section 10.01. Guarantee. (a) Subject to this Article Ten, each of the Guarantors hereby, jointly and severally, unconditionally guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal of, premium and Additional Interest, if any, and interest on the Notes will be promptly paid in full when due, whether at Stated Maturity, by acceleration or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. (b) The obligations of the Guarantors hereunder are independent of the obligations of the Company under the Notes and this Indenture and a separate action or actions may be brought and prosecuted against any Guarantor whether or not an action or proceeding is brought against the Company and whether or not the Company is joined in any such action or proceeding. The liability of the Guarantors hereunder is irrevocable, absolute and unconditional and (to the extent permitted by law) the liability and obligations of the Guarantors hereunder shall not be released, discharged, mitigated, waived, impaired or affected in whole or in part by: (i) any defect or lack of validity or enforceability in respect of any Indebtedness or other obligation of the Company or any other Person under this Indenture or the Notes, or any agreement or instrument relating to any of the foregoing; (ii) any grants of time, renewals, extensions, indulgences, releases, discharges or modifications which the Trustee or the Holders may extend to, or make with, the Company, any Guarantor or any other Person, or any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations under the Indenture or the Notes, or any other amendment or waiver of, or any consent to or departure from, this Indenture or the Notes, including any increase or decrease in the Obligations under the Indenture or the Notes; (iii) the taking of security from the Company, any Guarantor or any other Person, and the release, discharge or alteration of, or other dealing with, such security; (iv) the occurrence of any change in the laws, rules, regulations or ordinances of any jurisdiction by any present or future action of any governmental authority or court -89- amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the Obligations under the Indenture or the Notes and the obligations of any Guarantor hereunder; (v) the abstention from taking security from the Company, any Guarantor or any other Person or from perfecting, continuing to keep perfected or taking advantage of any security; (vi) any loss, diminution of value or lack of enforceability of any security received from the Company, any Guarantor or any other Person, and including any other guarantees received by the Trustee; (vii) any other dealings with the Company, any Guarantor or any other Person, or with any security; (viii) Trustee's or the Holders' acceptance of compositions from the Company or any Guarantor; (ix) the application by the Holders or the Trustee of all monies at any time and from time to time received from the Company, any Guarantor or any other Person on account of any indebtedness and liabilities owing by the Company or any Guarantor to the Trustee or the Holders, in such manner as the Trustee or the Holders deems best and the changing of such application in whole or in part and at any time or from time to time, or any manner of application of collateral, or proceeds thereof, to all or any of the Obligations under the Indenture or the Notes, or the manner of sale of any collateral; (x) the release or discharge of the Company or any Guarantor of the Notes or of any Person liable directly as surety or otherwise by operation of law or otherwise for the Notes, other than an express release in writing given by the Trustee, on behalf of the Holders, of the liability and obligations of any Guarantor hereunder; (xi) any change in the name, business, capital structure or governing instrument of the Company or any Guarantor or any refinancing or restructuring of any of the Obligations under the Indenture or the Notes; (xii) the sale of the Company's or any Guarantor's business or any part thereof; (xiii) subject to Section 10.06, any merger or consolidation, arrangement or reorganization of the Company, any Guarantor, any Person resulting from the merger or consolidation of the Company or any Guarantor with any other Person or any other successor to such Person or merged or consolidated Person or any other change in the corporate existence, structure or ownership of the Company or any Guarantor or any change in the corporate relationship between the Company and any Guarantor, or any termination of such relationship; (xiv) the insolvency, bankruptcy, liquidation, winding-up, dissolution, receivership, arrangement, readjustment, assignment for the benefit of creditors or distribution of the assets of the Company or its assets or any resulting discharge of any obligations of the Company (whether voluntary or involuntary) or of any Guarantor (whether voluntary or involuntary) or the loss of corporate existence; -90- (xv) subject to Section 10.06, any arrangement or plan of reorganization affecting the Company or any Guarantor; (xvi) any failure, omission or delay on the part of the Company to conform or comply with any term of this Indenture; (xvii) any limitation on the liability or obligations of the Company or any other Person under this Indenture, or any discharge, termination, cancellation, distribution, irregularity, invalidity or unenforceability in whole or in part of this Indenture; (xviii) any other circumstance (including any statute of limitations) that might otherwise constitute a defense available to, or discharge of, the Company or any Guarantor; or (xix) any modification, compromise, settlement or release by the Trustee, or by operation of law or otherwise, of the Obligations under the Indenture or the Notes or the liability of the Company or any other obligor under the Notes, in whole or in part, and any refusal of payment by the Trustee, in whole or in part, from any other obligor or other guarantor in connection with any of the Obligations under the Indenture or the Notes, whether or not with notice to, or further assent by, or any reservation of rights against, each of the Guarantors. (c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. (d) Each Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under federal bankruptcy law) or otherwise by reason of any payment by it pursuant to the provisions of this Article 10 until payment in full of all Obligations under the Indenture, the Notes and the Guarantees. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article Six hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. Each Guarantor that makes a payment or distribution under its Guarantee shall be entitled to a contribution from each other Guarantor, if any, so long as the exercise of such right does not impair the rights of the Holders under the Guarantee, in a pro rata amount based on the net assets of each Guarantor, determined in accordance with GAAP. (e) The Obligations of each Guarantor under its Guarantee pursuant to this Article Ten shall rank equally in right of payment with other existing and future senior Indebtedness of such Guarantor, and senior in right of payment to all existing and future Subordinated Indebtedness of such Guarantor. Section 10.02. Guarantee is in Addition to Other Security. This Guarantee shall be in addition to and not in substitution for any other guarantees which the Trustee may now or hereafter hold in respect of the Obligations under the Indenture and the -91- Notes owing to the Trustee or the Holders by the Company and (except as may be required by law) the Trustee shall be under no obligation to marshal in favor of each of the Guarantors any other guarantees or any moneys or other assets which the Trustee may be entitled to receive or upon which the Trustee or the Holders may have a claim. Section 10.03. Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies. (a) No failure to exercise and no delay in exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under this Article 10 and this Guarantee shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. (b) Nothing contained in this Article 10 shall limit the right of the Trustee or the Holders to take any action to accelerate the maturity of the Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or under applicable law. Section 10.04. Limitation on Guarantor Liability. Each Guarantor that is a Subsidiary of the Company, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the Guarantee by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law. To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under its Guarantee shall be limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under this Indenture, will result in the obligations of such Guarantor under its Guarantee not constituting such fraudulent transfer or conveyance. Section 10.05. Execution and Delivery of Guarantee. (a) To evidence its Guarantee set forth in Section 10.01, each Initial Guarantor hereby agrees that a notation of such Guarantee substantially in the form attached as Exhibit E hereto will be endorsed by an Officer of such Initial Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor by one of its Officers. (b) Each Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. (c) If an Officer whose signature is on this Indenture or on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Guarantee is endorsed, the Guarantee shall be valid nevertheless. (d) The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor. -92- (e) In the event a Restricted Subsidiary is required by Section 4.12 hereof to guarantee the Company's obligations under the Notes and this Indenture, the Company shall cause such Restricted Subsidiary to comply with the provisions of Section 4.12 hereof and this Article Ten, to the extent applicable. Section 10.06. Releases of Guarantors. (a) A Guarantor will be deemed automatically and unconditionally released and discharged from all of its obligations under its Guarantee without any further action on the part of the Trustee or any Holder of the Notes: (1) in connection with any sale of a majority of the Capital Stock of a Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary, if the sale of all such Capital Stock of that Guarantor complies with Sections 4.11 and 4.09 hereof; (2) if the Company properly designates any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary; (3) if the Notes are discharged in accordance with the procedures set forth in Article Eight or Article Eleven hereof; provided that any such release and discharge pursuant to clauses (1) and (2) above shall occur only to the extent that all obligations of such Guarantor under all of its guarantees of, and under all of its pledges of assets or other security interests which secure any, Indebtedness of the Company shall also terminate at such time. (b) Any Guarantor not released from its obligations under its Guarantee as provided in this Section 10.06 will remain liable for the full amount of principal of and interest and premium and Additional Interest, if any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided in this Article 10. ARTICLE ELEVEN SATISFACTION AND DISCHARGE Section 11.01. Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes as expressly provided for in this Indenture) as to all outstanding Notes under this Indenture when: (a) either (1) all such Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid or Notes whose payment has been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust as provided for in this Indenture) have been delivered to the Trustee for cancellation, or (2) all Notes not theretofore delivered to the Trustee for cancellation (a) have become due and payable, (b) will become due and payable at their Stated Maturity -93- within one year, or (c) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; (b) the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount in United States dollars, U.S. Government Obligations, or a combination thereof, sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, including principal of, premium, if any, and accrued interest at such Maturity, Stated Maturity or redemption date; (c) no Default or Event of Default shall have occurred and be continuing on the date of such deposit; (d) the Company or any Guarantor has paid or caused to be paid all other sums payable under this Indenture by the Company and any Guarantor; (e) the Company has delivered to the Trustee an Officers' Certificate and an opinion of independent counsel each stating that (1) all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with and (2) such satisfaction and discharge will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company, any Guarantor or any Subsidiary is a party or by which the Company, any Guarantor or any Subsidiary is bound; and (f) the Company has delivered irrevocable instructions to the Trustee hereunder to apply any deposited money described in clause (b) above to the payment of the Notes at Maturity, Stated Maturity or the redemption date, as the case may be. Section 11.02. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. (a) Subject to Section 11.03 hereof, all money and non-callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 11.02, the "Trustee") pursuant to Section 11.01 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law. (b) Notwithstanding the above, the Trustee shall pay to the Company from time to time upon its request any cash or U.S. Government Obligations held by it as provided in this Section 11.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect a satisfaction and discharge under this Article Eleven. Section 11.03. Repayment to the Company. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium or interest on any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from -94- such trust; and the Holder of such Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once, in The New York Times or The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company. ARTICLE TWELVE MISCELLANEOUS Section 12.01. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or any of its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. Section 12.02. Notices. (a) Any request, demand, authorization, note, waiver, consent or communication by the Company, any Guarantor or the Trustee to the other is duly given if in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows or transmitted by facsimile transmission to the following facsimile numbers: If to the Company or any Guarantor: INVACARE CORPORATION One Invacare Way Elyria, Ohio 44036 Facsimile: (440) 329-6975 Attention: General Counsel with copies to: CALFEE, HALTER & GRISWOLD LLP 1400 McDonald Investment Center 800 Superior Avenue Cleveland, Ohio 44114 Facsimile: (216) 241-0816 Attention: Thomas A. Cicarella, Esq. If to the Trustee: WELLS FARGO BANK, N.A. Corporate Trust Services MACN9303-120 608 - 2nd Avenue South Minneapolis, MN 55479 -95- Facsimile: (612) 667-9825 Attention: Invacare Account Manager (b) The Company, any Guarantor or the Trustee by notice given to the other in the manner prescribed above may designate additional or different addresses for subsequent notices or communications. (c) Any notice or communication given to a Holder shall be delivered to the Holder, in accordance with the procedures of the Registrar, by electronic transmission or by first class mail, postage prepaid, at the Holder's address as it appears on the registration books of the Registrar and shall be sufficiently given if so delivered within the time prescribed whether or not the underlying provision of this Indenture permits delivery by electronic transmission or by first class mail. (d) Failure to deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is delivered in the manner provided above, it is duly given, whether or not received by the addressee; provided, however, that no notice to the Trustee shall be deemed to be duly given unless and until the Trustee actually receives same at the address given above. (e) If the Company delivers a notice or communication to Holders, it shall deliver a copy to the Trustee and each Registrar Agent. Section 12.03. Communication by Holders with Other Holders. Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c). Section 12.04. Certificate and Opinion as to Conditions Precedent. (a) Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (i) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and (ii) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with. Section 12.05. Statements Required in Certificate or Opinion. (a) Each Officers' Certificate or Opinion of Counsel with respect to compliance with a covenant or condition provided for in this Indenture shall include: (i) a statement that each person making such Officers' Certificate or Opinion of Counsel has, on behalf of the Company, read such covenant or condition; -96- (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such Officers' Certificate or Opinion of Counsel are based; (iii) a statement that, in the opinion of each such person, he or she has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement that, in the opinion of such person, such covenant or condition has been complied with. Section 12.06. Rules by Trustee, Registrar and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules for their functions. Section 12.07. No Recourse Against Others. A director, officer, employee or shareholders, as such, of the Company or any Guarantor shall not have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture or the Guarantees or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. Section 12.08. Governing Law. THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF. Section 12.09. Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby ("Related Proceedings") may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York (collectively, the "Specified Courts"), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party's address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that a Related Proceeding has been brought in an inconvenient forum. Section 12.10. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. -97- Section 12.11. Successors. All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors. Section 12.12. Separability Clause. In case any provision in this Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 12.13. Multiple Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. Section 12.14. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by the Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing, and may be given or obtained in connection with a purchase of, or tender offer or exchange offer for, outstanding Notes; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company if made in the manner provided in this Section 12.14. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to such witness, notary or officer the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) Notwithstanding anything to the contrary contained in this Section 12.14, the principal amount and serial numbers of Notes held by any Holder, and the date of holding the same, shall be proved by the register of the Notes maintained by the Registrar as provided in Section 2.04 hereof. (d) If the Company shall solicit from the Holders of the Notes any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a resolution of its Board of Directors, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a -98- date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith or the date of the most recent list of Holders forwarded to the Trustee prior to such solicitation pursuant to Section 2.06 hereof and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of the then outstanding Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the then outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date. (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration or transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Note. (f) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Note may do so itself with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. (g) For purposes of this Indenture, any action by the Holders which may be taken in writing may be taken by electronic means or as otherwise reasonably acceptable to the Trustee. Section 12.15. Benefit of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Registrar and its successors hereunder, and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 12.16. Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. Section 12.17. Legal Holidays. A "legal holiday" is any day other than a Business Day. If any specified date (including a date for giving notice) is a legal holiday, the action shall be taken on the next succeeding day that is not a legal holiday, and, if the action to be taken on such date is a payment in respect of the Notes, no interest shall accrue with respect to such payment for the intervening period. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] -99- SIGNATURES INVACARE CORPORATION, an Ohio corporation By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President and COO -100- ADAPTIVE SWITCH LABORATORIES, INC. INVACARE FLORIDA CORPORATION INVACARE CREDIT CORPORATION THE AFTERMARKET GROUP, INC. THE HELIXX GROUP, INC. CHAMPION MANUFACTURING INC. HEALTHTECH PRODUCTS, INC. INVACARE CANADIAN HOLDINGS, INC. INVACARE INTERNATIONAL CORPORATION By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President and COO -101- KUSCHALL, INC. ALTIMATE MEDICAL, INC. INVACARE SUPPLY GROUP, INC. INVACARE HOLDINGS, LLC By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President and COO -102- FREEDOM DESIGNS, INC. By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President -103- MEDBLOC, INC. GARDEN CITY MEDICAL INC. By: /s/ Bradford J. Patrick ------------------------------------ Name: Bradford J. Patrick Title: Assistant Secretary -104- INVACARE FLORIDA HOLDINGS, LLC By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President -105- IN WITNESS WHEREOF, the undersigned, being duly authorized, has executed this Indenture on behalf of the Trustee as of the date first above written. WELLS FARGO BANK, N.A., as Trustee By: /s/ Lynn M. Steiner ------------------------------------ Name: Lynn M. Steiner Title: Vice President -106- EXHIBIT A1 [Face of Note] UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON, NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE "RESALE RESTRICTION TERMINATION DATE"), EXCEPT THAT THE NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE A1-1 SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. A1-2 CUSIP _____ No. ________ $ _________ INVACARE CORPORATION 9 3/4% Senior Notes due 2015 Invacare Corporation, an Ohio corporation (the "Company"), which term includes any successor under the Indenture hereinafter referred to, for value received, promises to pay to CEDE & CO., or its registered assigns, the principal sum of ___________ ($___________) UNITED STATES DOLLARS on February 15, 2015. Interest Payment Dates: February 15 and August 15 of each year, commencing August 15, 2007. Regular Record Dates: February 1 and August 1 of each year. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Date of Issuance: ___________________ A1-3 IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers. INVACARE CORPORATION, an Ohio corporation By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- A1-4 (Form of Trustee's Certificate of Authentication) This is one of the 9 3/4% Senior Notes due 2015 described in the within-mentioned Indenture. WELLS FARGO BANK, N.A., as Trustee By: ------------------------------------ Authorized Signatory Date: ------------------------------- A1-5 [Reverse Side of Note] INVACARE CORPORATION 9 3/4% Senior Notes due 2015 Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Interest. The Company promises to pay interest on the principal amount of this Note at 9 3/4% per annum from the date hereof until maturity [and shall pay Additional Interest, if any, as provided in the Registration Rights Agreement, dated February 12, 2007+ referred below].* The Company shall pay interest [and Additional Interest, if any,]* semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes shall accrue from the most recent date to which interest has been paid on the Notes (or one or more Predecessor Notes) or, if no interest has been paid, from the date of original issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be August 15, 2007++. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at 9 3/4% per annum; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest [and Additional Interest]* (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. If a payment date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue on such payment for the intervening period. [This Exchange Note was issued in connection with the Exchange Offer pursuant to which the 9 3/4% Senior Notes due 2015 in like principal amount were exchanged for Exchange Notes. The Exchange Notes rank pari passu in right of payment with the Initial Notes. For any period in which the Initial Note exchanged for this Exchange Note was outstanding, Additional Interest may be due and owing on the Initial Note in connection with the Registration Rights Agreement.]** 2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest [and Additional Interest]*, if any) to the Persons in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the February 1 or August 1 immediately preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.13 of the Indenture with respect to defaulted interest. [The Company shall pay all Additional Interest, if any, on the dates of its choosing and in the amounts set forth in the Registration Rights Agreement.]* The Notes shall be payable as to - ---------- + For Additional Notes, insert the date of the Registration Rights Agreement for those Additional Notes. * Not to be included for Exchange Notes. ++ For Additional Notes, insert the appropriate interest payment date for those Additional Notes. ** For Exchange Notes * Not to be included for Exchange Notes. A1-6 principal, premium, if any, and interest [and Additional Interest, if any,]* at the office or agency of the Company maintained for such purpose, or, at the option of the Company, payment of interest [and Additional Interest, if any,]* may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds shall be required with respect to principal of and interest, premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. 3. Paying Agent and Registrar. Initially, Wells Fargo Bank, N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. 4. Indenture. The Company issued the Notes under an Indenture dated as of February 12, 2007 (the "Indenture") among the Company, the Initial Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture pursuant to which this Note is issued provides that an unlimited amount of Additional Notes may be issued thereunder, subject to compliance with the covenants therein. 5. Optional Redemption. (a) On or after February 15, 2011, the Company may redeem all or a portion of the Notes, on not less than 30 nor more than 60 days' prior notice, in amounts of $1,000 or whole multiples of $1,000 in excess thereof at the following redemption prices (expressed as percentages of the principal amount), set forth below plus accrued and unpaid interest, if any, thereon, to the applicable redemption date (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date), if redeemed during the twelve-month period beginning on February 15 of the years indicated below:
REDEMPTION YEAR PRICE ---- ---------- ~~2011................. 104.875% 2012................. 102.438% 2013 and thereafter.. 100.000%~~
(a) In addition, at any time and from time to time prior to February 15, 2010, the Company may use the net proceeds of one or more Public Equity Offerings to redeem up to an aggregate of 35% of the aggregate principal amount of Notes issued under the Indenture (including the principal amount of any Additional Notes issued under the Indenture) at a redemption price equal to 109.750% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the redemption date (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date); provided that this redemption provision shall not be applicable with respect to any transaction that results in a Change of Control. At least 65% of the aggregate principal amount of Notes (including the principal amount of any Additional Notes issued under the Indenture) must remain outstanding immediately after the occurrence of such redemption. In order to effect this redemption, the Company must deliver a notice of redemption no later than 30 days after the closing of the related Public A1-7 Equity Offering and must complete such redemption within 60 days of the closing of the Public Equity Offering. (b) At any time prior to February 15, 2011, the Company also may redeem all or part of the Notes, upon not less than 30 nor more than 60 days' written notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to the redemption date, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date. 6. Mandatory Redemption. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes. 7. Repurchase at Option of Holders. (a) Upon the occurrence of a Change of Control, each Holder may require the Company to purchase such Holder's Notes in whole or in part in amounts of $1,000 or whole multiples of $1,000 in excess thereof, at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase, pursuant to a Change of Control Offer in accordance with the procedures set forth in the Indenture. (b) Under certain circumstances described in the Indenture, the Company will be required to apply the proceeds of Asset Sales to the repayment of the Notes and/or Pari Passu Indebtedness. 8. Selection and Notice of Redemption. If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Notes to be redeemed or purchased among the Holders of the Notes not more than 60 days prior to the redemption date in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. Redemptions pursuant to Section 3.07(b) of the Indenture shall be made on a pro rata basis or on as nearly a pro rata basis as practicable (subject to the provisions of the Depositary). In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption. Notices of redemption may not be conditional. If any Note is to be redeemed in part only, the notice of redemption that relates to that Note will state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest [and Additional Interest]*, if any, shall cease to accrue on Notes or portions of them called for redemption. 9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and whole multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company is not required to transfer or exchange any Note selected for redemption. - ---------- * Not to be included for Exchange Notes. A1-8 Also, the Company is not required to transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed. 10. Persons Deemed Owners. The registered Holder of a Note will be treated as its owner for all purposes. 11. Amendment, Supplement and Waiver. The Indenture or the Notes may be amended or supplemented only as provided in the Indenture. 12. Defaults. In the case of an Event of Default arising from certain events of bankruptcy, insolvency or reorganization specified in the Indenture, with respect to the Company or any Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may, and the Trustee at the request of such Holders shall, declare all unpaid principal of, premium, if any, and accrued interest on all Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders of the Notes) and upon any such declaration, such principal, premium, if any, and interest shall become due and payable immediately. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of not less than a majority in aggregate principal amount of the Notes outstanding by notice to the Trustee may on behalf of the Holders of all outstanding Notes waive any past Default and its consequences under the Indenture except a Default (1) in the payment of the principal of, premium, if any, or interest on any Note (which may only be waived with the consent of each Holder of Notes affected) or (2) in respect of a covenant or provision which under the Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment. 13. Trustee Dealings with the Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee. 14. No Recourse Against Others. A director, officer, employee or shareholders, as such, of the Company or any Guarantor shall not have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture or the Guarantees or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. 15. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 16. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes. [In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes issued on the Issue Date shall have all the rights set forth in the Registration Rights Agreement dated as of February 12, 2007+, among the Company, the Guarantors and the parties named on the signature pages thereof.]* - ---------- + For Additional Notes, insert the date of the Registration Rights Agreement for those Additional Notes. * Not to be included for Exchange Notes. A1-9 17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. 18. Designated Senior Debt. The Notes are "Designated Senior Debt" (as defined in the Convertible Senior Subordinated Debentures Indenture) under the Convertible Senior Subordinated Debentures Indenture. 19. Governing Law. This Note shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to the conflict of laws rules thereof. The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: INVACARE CORPORATION One Invacare Way Elyria, Ohio 44036 Facsimile: (440) 329-6975 Attention: General Counsel A1-10 ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to: __________________________________ (Insert assignee's legal name) ________________________________________________________________________________ (Insert assignee's soc. sec. or tax I.D. no.) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Print or type assignee's name, address and zip code) and irrevocably appoint _____________________________________________________ to transfer this Note on the books of the Company. The agent may substitute another to act for him. Date: ---------------- Your Signature: ------------------------ (Sign exactly as your name appears on the face of this Note) Signature Guarantee*: --------------- * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). A1-11 OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Section 4.11 or 4.18 of the Indenture, check the appropriate box below: [ ] Section 4.11 [ ] Section 4.18 If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.11 or Section 4.18 of the Indenture, state the amount you elect to have purchased: $_______________ Date: ---------------- Your Signature: ------------------------ (Sign exactly as your name appears on the face of this Note) Tax Identification No.: ---------------- Signature Guarantee*: --------------- * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). A1-12 SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
Amount of Decrease in Amount of Increase in Principal Amount Principal Amount at Principal Amount at Maturity of this Global Maturity of this Global Maturity of this Global Following such Date of Exchange Note Note Decrease (or Increase) - ---------------- ----------------------- ----------------------- -----------------------
A1-13 EXHIBIT A2 [Face of Note] UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE, THE GUARANTEES ENDORSED HEREON, NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE "RESALE RESTRICTION TERMINATION DATE"), EXCEPT THAT THE NOTES AND GUARANTEES MAY BE TRANSFERRED (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES AND THE GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE A2-1 SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).] [REGULATION S TEMPORARY GLOBAL NOTE LEGEND TO BE INCLUDED ONLY IN REGULATION S TEMPORARY GLOBAL NOTE]. A2-2 CUSIP _________ No. _____ $______________ INVACARE CORPORATION 9 3/4% Senior Notes due 2015 Invacare Corporation, an Ohio corporation (the "Company"), which term includes any successor under the Indenture hereinafter referred to, for value received, promises to pay to CEDE & CO., or its registered assigns, the principal sum of ___________ ($___________) UNITED STATES DOLLARS on February 15, 2015. Interest Payment Dates: February 15 and August 15 of each year, commencing August 15, 2007. Regular Record Dates: February 1 and August 1 of each year. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Date of Issuance: _______________ A2-3 IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers. INVACARE CORPORATION, an Ohio corporation By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- A2-4 (Form of Trustee's Certificate of Authentication) This is one of the 9 3/4% Senior Notes due 2015 described in the within-mentioned Indenture. WELLS FARGO BANK, N.A., as Trustee By: ------------------------------------ Authorized Signatory Date: --------------- A2-5 [Reverse Side of Note] INVACARE CORPORATION 9 3/4% Senior Notes due 2015 Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Interest. The Company promises to pay interest on the principal amount of this Note at 9 3/4% per annum from the date hereof until maturity [and shall pay Additional Interest, if any, as provided in the Registration Rights Agreement, dated February 12, 2007+ referred below].* The Company shall pay interest [and Additional Interest, if any,]* semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes shall accrue from the most recent date to which interest has been paid on the Notes (or one or more Predecessor Notes) or, if no interest has been paid, from the date of original issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be August 15, 2007++. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at 9 3/4% per annum; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest [and Additional Interest]* (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. If a payment date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue on such payment for the intervening period. [This Exchange Note was issued in connection with the Exchange Offer pursuant to which the 9 3/4% Senior Notes due 2015 in like principal amount were exchanged for Exchange Notes. The Exchange Notes rank pari passu in right of payment with the Initial Notes. For any period in which the Initial Note exchanged for this Exchange Note was outstanding, Additional Interest may be due and owing on the Initial Note in connection with the Registration Rights Agreement.]** 2. Method of Payment. The Company shall pay interest on the Notes (except defaulted interest [and Additional Interest]*, if any) to the Persons in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the February 1 or August 1 immediately preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.13 of the Indenture with respect to defaulted interest. [The Company shall pay all Additional Interest, if any, on the dates of its choosing and in the amounts set forth in the Registration Rights Agreement.]* The Notes shall be payable as to - ---------- + For Additional Notes, insert the date of the Registration Rights Agreement for those Additional Notes. * Not to be included for Exchange Notes. ++ For Additional Notes, insert the appropriate interest payment date for those Additional Notes. ** For Exchange Notes * Not to be included for Exchange Notes. A2-6 principal, premium, if any, and interest [and Additional Interest, if any,]* at the office or agency of the Company maintained for such purpose, or, at the option of the Company, payment of interest [and Additional Interest, if any,]* may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds shall be required with respect to principal of and interest, premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. 3. Paying Agent and Registrar. Initially, Wells Fargo Bank, N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. 4. Indenture. The Company issued the Notes under an Indenture dated as of February 12, 2007 (the "Indenture") among the Company, the Initial Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture pursuant to which this Note is issued provides that an unlimited amount of Additional Notes may be issued thereunder, subject to compliance with the covenants therein. 5. Optional Redemption. (a) On or after February 15, 2011, the Company may redeem all or a portion of the Notes, on not less than 30 nor more than 60 days' prior notice, in amounts of $1,000 or whole multiples of $1,000 in excess thereof at the following redemption prices (expressed as percentages of the principal amount), set forth below plus accrued and unpaid interest, if any, thereon, to the applicable redemption date (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date), if redeemed during the twelve-month period beginning on February 15 of the years indicated below:
YEAR REDEMPTION PRICE - ---- ---------------- ~~2011............................. 104.875% 2012............................. 102.438% 2013 and thereafter.............. 100.000%~~
(b) In addition, at any time and from time to time prior to February 15, 2010, the Company may use the net proceeds of one or more Public Equity Offerings to redeem up to an aggregate of 35% of the aggregate principal amount of Notes issued under the Indenture (including the principal amount of any Additional Notes issued under the Indenture) at a redemption price equal to 109.750% of the aggregate principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the redemption date (subject to the rights of holders of record on relevant record dates to receive interest due on an interest payment date); provided that this redemption provision shall not be applicable with respect to any transaction that results in a Change of Control. At least 65% of the aggregate principal amount of Notes (including the principal amount of any Additional Notes issued under the Indenture) must remain outstanding immediately after the occurrence of such redemption. In order to effect this redemption, the Company must deliver a notice of redemption no later than 30 days after the closing of the related Public A2-7 Equity Offering and must complete such redemption within 60 days of the closing of the Public Equity Offering. (c) At any time prior to February 15, 2011, the Company also may redeem all or part of the Notes, upon not less than 30 nor more than 60 days' written notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to the redemption date, subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date. 6. Mandatory Redemption. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes. 7. Repurchase at Option of Holders. (a) Upon the occurrence of a Change of Control, each Holder may require the Company to purchase such Holder's Notes in whole or in part in amounts of $1,000 or whole multiples of $1,000 in excess thereof, at a purchase price in cash in an amount equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase, pursuant to a Change of Control Offer in accordance with the procedures set forth in the Indenture. (c) Under certain circumstances described in the Indenture, the Company will be required to apply the proceeds of Asset Sales to the repayment of the Notes and/or Pari Passu Indebtedness. 8. Selection and Notice of Redemption. If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Notes to be redeemed or purchased among the Holders of the Notes not more than 60 days prior to the redemption date in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. Redemptions pursuant to Section 3.07(b) of the Indenture shall be made on a pro rata basis or on as nearly a pro rata basis as practicable (subject to the provisions of the Depositary). In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption. Notices of redemption may not be conditional. If any Note is to be redeemed in part only, the notice of redemption that relates to that Note will state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest [and Additional Interest]*, if any, shall cease to accrue on Notes or portions of them called for redemption. 9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and whole multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company is not required to transfer or exchange any Note selected for redemption. - ---------- * Not to be included for Exchange Notes. A2-8 Also, the Company is not required to transfer or exchange any Note for a period of 15 days before a selection of Notes to be redeemed. 10. Persons Deemed Owners. The registered Holder of a Note will be treated as its owner for all purposes. 11. Amendment, Supplement and Waiver. The Indenture or the Notes may be amended or supplemented only as provided in the Indenture. 12. Defaults. In the case of an Event of Default arising from certain events of bankruptcy, insolvency or reorganization specified in the Indenture, with respect to the Company or any Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may, and the Trustee at the request of such Holders shall, declare all unpaid principal of, premium, if any, and accrued interest on all Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders of the Notes) and upon any such declaration, such principal, premium, if any, and interest shall become due and payable immediately. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of not less than a majority in aggregate principal amount of the Notes outstanding by notice to the Trustee may on behalf of the Holders of all outstanding Notes waive any past Default and its consequences under the Indenture except a Default (1) in the payment of the principal of, premium, if any, or interest on any Note (which may only be waived with the consent of each Holder of Notes affected) or (2) in respect of a covenant or provision which under the Indenture cannot be modified or amended without the consent of the Holder of each Note affected by such modification or amendment. 13. Trustee Dealings with the Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee. 14. No Recourse Against Others. A director, officer, employee or shareholders, as such, of the Company or any Guarantor shall not have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture or the Guarantees or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. 15. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 16. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes. [In addition to the rights provided to Holders under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes issued on the Issue Date shall have all the rights set forth in the Registration Rights Agreement dated as of February 12, 2007+, among the Company, the Guarantors and the parties named on the signature pages thereof.]* - ---------- + For Additional Notes, insert the date of the Registration Rights Agreement for those Additional Notes. * Not to be included for Exchange Notes. A2-9 17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. 18. Designated Senior Debt. The Notes are "Designated Senior Debt" (as defined in the Convertible Senior Subordinated Debentures Indenture) under the Convertible Senior Subordinated Debentures Indenture. 19. Governing Law. This Note shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to the conflict of laws rules thereof. The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: INVACARE CORPORATION One Invacare Way Elyria, Ohio 44036 Facsimile: (440) 329-6975 Attention: General Counsel A2-10 ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to: __________________________________ (Insert assignee's legal name) ________________________________________________________________________________ (Insert assignee's soc. sec. or tax I.D. no.) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Print or type assignee's name, address and zip code) and irrevocably appoint_____________________________________________________ to transfer this Note on the books of the Company. The agent may substitute another to act for him. Date: --------------- Your Signature: ------------------------ (Sign exactly as your name appears on the face of this Note) Signature Guarantee*: --------------- * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). A2-11 OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Section 4.11 or 4.18 of the Indenture, check the appropriate box below: [ ] Section 4.11 [ ] Section 4.18 If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.11 or Section 4.18 of the Indenture, state the amount you elect to have purchased: $_______________ Date: ---------------- Your Signature: ------------------------ (Sign exactly as your name appears on the face of this Note) Tax Identification No.: ________________ Signature Guarantee*: --------------- * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). A2-12 SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
Amount of Decrease in Amount of Increase in Principal Amount Principal Amount at Principal Amount at Maturity of this Global Maturity of this Global Maturity of this Global Following such Date of Exchange Note Note Decrease (or Increase) - ---------------- ----------------------- ----------------------- -----------------------
A2-13 EXHIBIT B FORM OF CERTIFICATE OF TRANSFER INVACARE CORPORATION One Invacare Way Elyria, Ohio 44036 Facsimile: (440) 329-6975 Attention: General Counsel WELLS FARGO BANK, N.A. Corporate Trust Services MACN9303-120 608 - 2nd Avenue South Minneapolis, MN 55479 Facsimile: (612) 667-9825 Attention: Invacare Account Manager Re: 9 3/4% Senior Notes due 2015 Reference is hereby made to the Indenture, dated as of February 12, 2007 (the "Indenture"), among Invacare Corporation, an Ohio corporation (the "Company"), the Guarantors and Wells Fargo Bank, N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. ___________________ (the "Transferor") owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount at maturity of $___________ in such Note[s] or interests (the "Transfer"), to ___________________________ (the "Transferee"), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that: [CHECK ALL THAT APPLY] [ ] 1. Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a "qualified institutional buyer" within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the Indenture and the Securities Act. [ ] 2. Check if Transferee will take delivery of a beneficial interest in the Regulation S Temporary Global Note, the Regulation S Permanent Global Note or a Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 B-1 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Permanent Global Note, the Regulation S Temporary Global Note and/or the Definitive Note and in the Indenture and the Securities Act. [ ] 3. Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one): (a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act; or (b) [ ] such Transfer is being effected to the Company or a subsidiary thereof; or (c) [ ] such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act; or (d) [ ] such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Definitive Notes and in the Indenture and the Securities Act. B-2 [ ] 4. Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note. (a) [ ] Check if Transfer is Pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture. (b) [ ] Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture. (c) [ ] Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture. This certificate and the statements contained herein are made for your benefit and the benefit of the Company. ---------------------------------------- [Insert Name of Transferor] By: ------------------------------------- Name: ---------------------------------- Title: --------------------------------- Dated: --------------- B-3 ANNEX A TO CERTIFICATE OF TRANSFER 1. The Transferor owns and proposes to transfer the following: [CHECK ONE OF (A) OR (B)] [ ] (A) a beneficial interest in the: (i) 144A Global Note (CUSIP __________); or (ii) Regulation S Global Note (CUSIP __________); or (iii) IAI Global Note (CUSIP __________); or [ ] (B) a Restricted Definitive Note. 2. After the Transfer the Transferee will hold: [CHECK ONE] [ ] (A) a beneficial interest in the: (i) 144A Global Note (CUSIP __________); or (ii) Regulation S Global Note (CUSIP __________); or (iii) IAI Global Note (CUSIP________); or (iv) Unrestricted Global Note (CUSIP___________); or [ ] (B) a Restricted Definitive Note; or [ ] (C) an Unrestricted Definitive Note, in accordance with the terms of the Indenture. B-4 EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE INVACARE CORPORATION One Invacare Way Elyria, Ohio 44036 Facsimile: (440) 329-6975 Attention: General Counsel WELLS FARGO BANK, N.A. Corporate Trust Services MACN9303-120 608 - 2nd Avenue South Minneapolis, MN 55479 Facsimile: (612) 667-9825 Attention: Invacare Account Manager Re: 9 3/4% Senior Notes due 2015 Reference is hereby made to the Indenture, dated as of February 12, 2007 (the "Indenture"), among Invacare Corporation, an Ohio corporation (the "Company"), the Guarantors and Wells Fargo Bank, N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. __________________________ (the "Owner") owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount at maturity of $____________ in such Note[s] or interests (the "Exchange"). In connection with the Exchange, the Owner hereby certifies that: 1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note (a) [ ] Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount at maturity, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (b) [ ] Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the C-1 Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (c) [ ] Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (d) [ ] Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner's Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. 2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes (a) [ ] Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount at maturity, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner's own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act. (b) [ ] Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note, [ ] Regulation S Global Note, [ ] IAI Global Note with an equal principal amount at maturity, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act. This certificate and the statements contained herein are made for your benefit and the benefit of the Company. C-2 ---------------------------------------- [Insert Name of Transferor] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Dated: --------------- C-3 EXHIBIT D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR INVACARE CORPORATION One Invacare Way Elyria, Ohio 44036 Facsimile: (440) 329-6975 Attention: General Counsel WELLS FARGO BANK, N.A. Corporate Trust Services MACN9303-120 608 - 2nd Avenue South Minneapolis, MN 55479 Facsimile: (612) 667-9825 Attention: Invacare Account Manager Re: 9 3/4% Senior Notes due 2015 Reference is hereby made to the Indenture, dated as of February 12, 2007 (the "Indenture"), among Invacare Operation, an Ohio corporation (the "Company"), the Guarantors and Wells Fargo Bank, N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. In connection with our proposed purchase of $____________ aggregate principal amount at maturity of: (a) beneficial interest in a Global Note, or (b) a Definitive Note, we confirm that: 1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the United States Securities Act of 1933, as amended (the "Securities Act"). 2. We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a "qualified institutional buyer" (as defined therein), (C) to an institutional "accredited investor" (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter substantially in the form of this letter and an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such transfer is in D-1 compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or (F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein. 3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect. 4. We are an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment. 5. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional "accredited investor") as to each of which we exercise sole investment discretion. You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. ---------------------------------------- [Insert Name of Accredited Investor] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- Dated: --------------- D-2 EXHIBIT E FORM OF NOTATION OF GUARANTEE For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of February 12, 2007 (the "Indenture") among Invacare Corporation (the "Company"), the Guarantors party thereto and Wells Fargo Bank, N.A., as trustee (the "Trustee"), (a) the due and punctual payment of the principal of, premium and Additional Interest, if any, and interest on, the Notes, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other obligations of the Company under the Indenture to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Ten of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions. This Guarantee may be released in accordance with the Indenture without any further act by any Holder. Capitalized terms used but not defined herein have the meanings given to them in the Indenture. [NAME OF GUARANTOR(S)] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- E-1 EXHIBIT F FORM OF GUARANTOR SUPPLEMENTAL INDENTURE TO BE DELIVERED BY GUARANTORS SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of __________, 20__, among __________ (the "Guaranteeing Subsidiary"), a subsidiary of Invacare Corporation (or its permitted successor), an Ohio corporation (the "Company"), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wells Fargo Bank, N.A., as trustee under the Indenture referred to below (the "Trustee"). WITNESSETH WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of February 12, 2007, providing for the issuance of 9 3/4% Senior Notes due 2015 (the "Notes"); WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the "Guarantee"); and WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the other Guarantors, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: (1) Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. (2) Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Guarantee and in the Indenture including but not limited to Article 10 thereof. (3) No Recourse Against Others. A director, officer, employee or shareholders, as such, of the Guaranteeing Subsidiary shall not have any liability for any obligations of the Company or the Guarantors under the Securities, this Indenture or the Guarantees or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for issue of the Notes. (4) NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF. (5) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. F-1 (6) Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof. (7) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary, the Company, and the other Guarantors. F-2 IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written. Dated: ________, 20__ [GUARANTEEING SUBSIDIARY] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- INVACARE CORPORATION By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- [EXISTING GUARANTORS] By: ------------------------------------ Name: ---------------------------------- Title: --------------------------------- WELLS FARGO BANK, N.A., as Trustee By: ------------------------------------ Authorized Signatory F-3 EXHIBIT G FORM OF INTERCOMPANY NOTE _____________, 20[__] FOR VALUE RECEIVED, _____________, a _____________ corporation (the "Maker"), HEREBY PROMISES TO PAY ON DEMAND to the order of _____________ (the "Holder") the principal sum of the aggregate unpaid principal amount of all Loans (plus accrued interest thereon) at any time and from time to time made by the Holder to the Maker (the "Loans"). All capitalized terms used herein that are defined in, or by reference in, the Indenture, dated as of February 12, 2007 (the "Indenture"), among Invacare Corporation, an Ohio corporation (the "Company"), the Guarantors and Wells Fargo Bank, N.A., as trustee, have the meanings assigned to such terms therein, or by reference therein, unless otherwise defined. ARTICLE I TERMS OF INTERCOMPANY NOTE Section 1.01 Interest: Prepayment. (a) The interest rate ("Interest Rate") on each Loan shall be as from time to time agreed by the Holder and the Maker, but in no event to exceed the maximum amount permitted by applicable law. (b) The interest, if any, payable on each of the Loans shall accrue from the date such Loan is made and, subject to Section 2.01, shall be payable upon demand of the Holder. (c) Subject to Section 2.01, any amounts hereunder may be repaid at any time by the Maker. Section 1.02 Subordination. To the extent provided in Section 2.01, all Loans hereunder shall be subordinated in right of payment to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Guarantee, in the case of a Guarantor. ARTICLE II EVENTS OF DEFAULT Section 2.01 Events of Default. If after the date of issuance of this Loan an Event of Default has occurred and continues under the Indenture, then in the event the Maker is the Company or any Guarantor, the amounts owing under the Loans hereunder shall not be due and payable and shall not be paid until all Obligations under the Notes, in the case of the Company, and the Guarantee, in the case of a Guarantor, are paid in full in cash; provided, however, that if such Event of Default has been waived, cured or rescinded, such amounts may be paid. The Holder hereby agrees that if it receives any payments or distributions on any Loan from the Company or any Guarantor which is not payable pursuant to the prior sentence after any Event of Default has occurred, is continuing and has not been waived, cured or rescinded, it will pay over and deliver forthwith to the Company or such Guarantor, all such payments and distributions. G-1 ARTICLE III MISCELLANEOUS Section 3.01 Amendments, Etc. No amendment or waiver of any provision of this intercompany note, or consent to depart herefrom is permitted at any time for any reason, except with the consent of the Holders of at least a majority in aggregate principal amount of the Notes (including Additional Notes, if any) then outstanding. Section 3.02 Third Party Beneficiaries. The holders of the Notes or any other Indebtedness ranking pari passu with the Notes or any Guarantees, including without limitation, any Indebtedness incurred under the Senior Credit Agreement, shall be third party beneficiaries to this intercompany note and upon an Event of Default shall have the right to enforce the subordination provisions of this intercompany note against the Holder. Section 3.03 Headings. Article and Section headings in this intercompany note are included for convenience of reference only and shall not constitute a part of this intercompany note for any other purpose. Section 3.04 Entire Agreement. This intercompany note sets forth the entire agreement of the parties with respect to its subject matter and supersedes all previous understandings, written or oral, in respect thereof. Section 3.05 GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. Section 3.06 Waivers. The Maker hereby waives presentment, demand for payment, notice of protest and all other demands and notices in connection with the delivery, acceptance, performance or enforcement hereof. [NAME OF MAKER] By: ------------------------------------ G-2 EX-4.3 4 l24661aexv4w3.txt EX-4.3 EXHIBIT 4.3 EXECUTION VERSION INVACARE CORPORATION 4.125% CONVERTIBLE SENIOR SUBORDINATED DEBENTURES DUE 2027 RESALE REGISTRATION RIGHTS AGREEMENT DATED FEBRUARY 12, 2007 RESALE REGISTRATION RIGHTS AGREEMENT, dated as of February 12, 2007, among Invacare Corporation, an Ohio corporation (together with any successor entity, herein referred to as the "COMPANY"), the subsidiaries of the Company listed on the signature page hereto (collectively, the "GUARANTORS"), and Banc of America Securities LLC, KeyBanc Capital Markets, a division of McDonald Investments Inc., BMO Capital Markets Corp. and SunTrust Capital Markets, Inc. as representatives (the "REPRESENTATIVES") of the several initial purchasers (the "INITIAL PURCHASERS") under the Purchase Agreement (as defined below). Pursuant to the Purchase Agreement, dated as of February 5, 2007 between the Company, the Guarantors and the Representatives (the "PURCHASE AGREEMENT"), relating to the initial placement (the "INITIAL PLACEMENT") of the Debentures (as defined below), the Initial Purchasers have agreed to purchase from the Company $125 million ($135 million if the Initial Purchasers exercise their option in full) in aggregate principal amount of 4.125% Convertible Senior Subordinated Debentures due 2027 (the "DEBENTURES") fully and unconditionally guaranteed by the Guarantors (the "GUARANTEES") pursuant to the Purchase Agreement. The Debentures will be convertible, subject to the terms thereof, into fully paid, nonassessable common shares, without par value, of the Company (the "COMMON STOCK"). To induce the Initial Purchasers to purchase the Debentures, the Company has agreed to provide the registration rights set forth in this Agreement pursuant to Section 5(h) of the Purchase Agreement. The parties hereby agree as follows: 1. Definitions. Capitalized terms used in this Agreement without definition shall have their respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following capitalized terms shall have the following meanings: "AFFILIATE" of any specified person means any other person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified person. For purposes of this definition, control of a person means the power, direct or indirect, to direct or cause the direction of the management and policies of such person whether by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "AGREEMENT": This Resale Registration Rights Agreement. "AMENDMENT EFFECTIVENESS DEADLINE DATE": has the meaning set forth in Section 2(f)(i) hereof. "BUSINESS DAY": The definition of "Business Day" in the Indenture. "CLOSING DATE": The date of the first issuance of the Debentures. "COMMISSION": Securities and Exchange Commission. "COMMON STOCK": As defined in the preamble hereto. "COMPANY": As defined in the preamble hereto. "DEBENTURES": As defined in the preamble hereto. "EFFECTIVENESS DATE": As defined in Section 2(a)(ii) hereof. "EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof. 1 "EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof. "EXCHANGE ACT": Securities Exchange Act of 1934, as amended. "FREE WRITING PROSPECTUS": A free writing prospectus, as defined in Rule 405 under the Securities Act. "GUARANTEES": As defined in the preamble hereto. "GUARANTORS": As defined in the preamble hereto. "HOLDER": A Person who owns, beneficially or otherwise, Transfer Restricted Securities. "INDEMNIFIED HOLDER": As defined in Section 6(a) hereof. "INDENTURE": The Indenture, dated as of February 12, 2007 between the Company, the Guarantors and Wells Fargo Bank, N.A., as trustee (the "TRUSTEE"), pursuant to which the Debentures are to be issued, as such Indenture is amended, modified or supplemented from time to time in accordance with the terms thereof. "INITIAL PLACEMENT": As defined in the preamble hereto. "INITIAL PURCHASERS": As defined in the preamble hereto. "ISSUER FREE WRITING PROSPECTUS": An issuer free writing prospectus, as defined in Rule 433 under the Securities Act. "LIQUIDATED DAMAGES": As defined in Section 3(a) hereof. "LIQUIDATED DAMAGES PAYMENT DATE": Each February 1 and August 1. "LOSSES": As defined in Section 6(a) hereof. "MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate principal amount of Debentures outstanding; provided that, for the purpose of this Agreement, a holder of shares of Common Stock which constitute Transfer Restricted Securities shall be deemed to hold an aggregate principal amount of the Debentures (in addition to the principal amount of the Debentures held by such holder) equal to the quotient of (x) the number of such shares of Common Stock held by such holder and (y) the conversion rate in effect at the time of their issuance upon conversion of the Debentures as determined in accordance with the Indenture. "MANAGING UNDERWRITER": The investment banker or investment bankers and manager or managers that administer an underwritten offering, if any, conducted pursuant to Section 8 hereof. "NASD": National Association of Securities Dealers, Inc. "NOTICE AND QUESTIONNAIRE" means a written notice executed by the respective Holder and delivered to the Company containing substantially the information called for by the Selling Securityholder Notice and Questionnaire attached as Appendix A to the Offering Memorandum of the Company relating to the Debentures. 2 "NOTICE HOLDER": On any date, any Holder of Transfer Restricted Securities that has delivered a Notice and Questionnaire to the Company on or prior to such date. "PERMITTED FREE WRITING PROSPECTUS": As defined in Section 9(a) hereof. "PERSON": An individual, partnership, corporation, company, unincorporated organization, trust, joint venture or a government or agency or political subdivision thereof. "PURCHASE AGREEMENT": As defined in the preamble hereto. "PROSPECTUS": The prospectus included in a Shelf Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such prospectus. "RECORD HOLDER": With respect to any Liquidated Damages Payment Date, each Person who is a registered holder of the Debentures on the 15th day preceding the relevant Liquidated Damages Payment Date. "REGISTRATION DEFAULT": As defined in Section 3(a) hereof. "REPRESENTATIVES": As defined in the preamble hereto. "SECURITIES ACT": Securities Act of 1933, as amended. "SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof. "SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof. "SUSPENSION NOTICE": As defined in Section 4(c) hereof. "SUSPENSION PERIOD": As defined in Section 4(b)(ii) hereof. "TIA": Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder, in each case, as in effect on the date the Indenture is qualified under the TIA. "TRANSFER RESTRICTED SECURITIES": Each Debenture and each share of Common Stock issued upon conversion of Debentures until the earliest of: (i) the date on which such Debenture or such share of Common Stock issued upon conversion has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement; (ii) the date on which such Debenture or such share of Common Stock issued upon conversion is transferred in compliance with Rule 144 (or any other similar provision then in force) under the Securities Act or eligible for transfer pursuant to paragraph (k) of Rule 144 under the Securities Act (or any other similar provision then in force); (iii) the date on which such Debenture or such share of Common Stock issued upon conversion ceases to be outstanding (whether as a result of redemption, repurchase and cancellation, conversion or otherwise); or 3 (iv) the date on which such Debenture or such share of Common Stock has otherwise been transferred and a new Debenture or share of Common Stock not subject to transfer restrictions under the Securities Act has been delivered by or on behalf of the Company in accordance with Section 2.06 of the Indenture. "UNDERWRITER": Any underwriter of Transfer Restricted Securities in connection with an offering thereof under the Shelf Registration Statement. "UNDERWRITTEN REGISTRATION": A registration in which Transfer Restricted Securities of the Company are sold to an underwriter for reoffering to the public. Unless the context otherwise requires, the singular includes the plural, and words in the plural include the singular. 2. Shelf Registration. (a) The Company shall: (i) use its commercially reasonable efforts (but in no event more than 90 days after the Closing Date) (the "SHELF FILING DEADLINE"), to cause to be filed, or otherwise designate an existing filing with the Commission as, a registration statement pursuant to Rule 415 under the Securities Act or any similar rule that may be adopted by the Commission (the "SHELF REGISTRATION STATEMENT"), which Shelf Registration Statement shall provide for the registration and resales, on a continuous or delayed basis, of all Transfer Restricted Securities subject to the terms and conditions hereof; (ii) use its commercially reasonable efforts to cause the Shelf Registration Statement to become effective under the Securities Act, or otherwise make available for use by Holders a previously filed effective Shelf Registration Statement, not later than 210 days after the date hereof (the "EFFECTIVENESS TARGET DATE", and the date of such effectiveness or availability, the "EFFECTIVENESS DATE"); and (iii) use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by the Securities Act and by the provisions of Section 4(b) hereof to the extent necessary to ensure that (A) it is available for resales by the Holders of Transfer Restricted Securities entitled, subject to the terms and conditions hereof, to the benefit of this Agreement and (B) conforms with the requirements of this Agreement and the Securities Act and the rules and regulations of the Commission promulgated thereunder as announced from time to time, for a period (the "EFFECTIVENESS PERIOD") from the date the Shelf Registration Statement becomes effective until the date that the Debentures and the shares of Common Stock issuable upon exchange thereof have ceased to be Transfer Restricted Securities. The Company shall be deemed not have used its commercially reasonable efforts to keep the Shelf Registration Statement effective during the Effectiveness Period if it voluntarily takes any action that would result in Holders of Transfer Restricted Securities not being able to offer and sell such securities at any time during the Effectiveness Period, unless such action is (x) required by applicable law or otherwise undertaken by the Company in good faith and for valid business reasons (not including avoidance of the Company's obligations hereunder), including the acquisition or divestiture of assets, or (y) permitted by Section 4(b)(ii) hereof. 4 (b) Not less than 30 days prior to the Effectiveness Target Date, the Company shall mail the Notice and Questionnaire to the Holders. Each Holder that becomes a Notice Holder (and provides such additional information as the Company reasonably may request) no later than 20 days following such Holder's receipt of notice from the Company of the filing or designation of the Shelf Registration Statement shall be named as a selling securityholder in the initial Registration Statement made available to Holders under the Shelf Registration Statement. (c) If the Shelf Registration Statement ceases to be effective for any reason at any time during the Effectiveness Period (other than because all Transfer Restricted Securities registered thereunder shall have been resold pursuant thereto or shall have otherwise ceased to be Transfer Restricted Securities), the Company shall use its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof or file or designate a subsequent Shelf Registration Statement covering all of the securities that as of the date of such filing or designation are Transfer Restricted Securities. If such an subsequent Shelf Registration Statement is filed or designated (and is not already effective), the Company shall use its commercially reasonable efforts to cause the subsequent Shelf Registration Statement to become effective as promptly as is practicable after such filing or designation and to keep such subsequent Shelf Registration Statement continuously effective until the end of the Effectiveness Period. (d) The Company shall supplement and amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement, if required by the Securities Act or as reasonably requested by the Initial Purchasers or by the Trustee on behalf of the Holders of the Transfer Restricted Securities covered by such Shelf Registration Statement. (e) The Company shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or such amendment or supplement, and any Issuer Free Writing Prospectus, as of the date thereof, (i) to comply in all material respects with the applicable requirements of the Securities Act, and (ii) not to 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 statements therein (in the case of the Prospectus and any Issuer Free Writing Prospectus, in light of the circumstances under which they were made) not misleading. (f) Each Holder agrees that if such Holder wishes to sell Transfer Restricted Securities pursuant to a Shelf Registration Statement and related Prospectus, it will do so only in accordance with the terms and conditions of this Agreement. Each Holder wishing to sell Transfer Restricted Securities pursuant to a Shelf Registration Statement and related Prospectus from and after the Effectiveness Date agrees to deliver a Notice and Questionnaire to the Company at least 10 Business Days prior to any intended distribution of Transfer Restricted Securities under the Shelf Registration Statement. From and after the Effectiveness Date, the Company shall, as promptly as practicable after the date a Notice and Questionnaire is delivered to it, and in any event upon the later of (x) 15 Business Days after such date (but no earlier than 15 Business Days after effectiveness) or (y) 15 Business Days after the expiration of any Suspension Period in effect when the Notice and Questionnaire is delivered or put into effect within 15 Business Days of such delivery date: (i) if required by applicable law, file with the SEC a post-effective amendment to the Shelf Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document 5 incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling securityholder in the Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of the Transfer Restricted Securities in accordance with applicable law and, if the Company shall file a post-effective amendment to the Shelf Registration Statement, use its commercially reasonable efforts to cause such post-effective amendment to become effective under the Securities Act as promptly as is practicable, but in any event by the date (the "AMENDMENT EFFECTIVENESS DEADLINE DATE") that is 45 days after the date such post-effective amendment is required by this clause to be filed; (ii) provide such Holder a reasonable number of copies of the any documents filed pursuant to Section 2(f)(i); and (iii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 2(f)(i); provided that if such Notice and Questionnaire is delivered during a Suspension Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Suspension Period in accordance with Section 4(b). Notwithstanding anything contained herein to the contrary, (i) the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling securityholder in any Registration Statement or related Prospectus and (ii) the Amendment Effectiveness Deadline Date shall be extended by up to 10 Business Days from the Expiration of a Suspension Period (and the Company shall incur no obligation to pay Liquidated Damages during such extension) if such Suspension Period shall be in effect on the Amendment Effectiveness Deadline Date. 3. Liquidated Damages. (a) If: (i) the Shelf Registration Statement is not filed, or on file, with the Commission prior to or on the Shelf Filing Deadline; (ii) the Shelf Registration Statement has not become effective, or a previously effective Shelf Registration Statement has not been made available, prior to or on the Effectiveness Target Date; (iii) the Company has failed to perform its obligations set forth in Section 2(f) within the time periods required therein; (iv) any post-effective amendment to a Shelf Registration filed pursuant to Section 2(f)(i) has not become effective under the Securities Act on or prior to the Amendment Effectiveness Deadline Date; (v) except as provided in Section 4(b)(ii) hereof, the Shelf Registration Statement is filed and has become effective but, during the Effectiveness Period, shall thereafter cease to be effective or fail to be usable for its intended purpose for more than 10 Business Days; or 6 (vi) Suspension Periods exceed an aggregate of 30 days within any 90-day period or an aggregate of 90 days in any 360-day period; (each such event referred to in foregoing clauses (i) through (vi), a "REGISTRATION DEFAULT"), the Company hereby agrees to pay interest ("LIQUIDATED DAMAGES") with respect to the Transfer Restricted Securities from and including the day following the Registration Default to but excluding the earlier of (1) the day on which the Registration Default has been cured and (2) the date the Shelf Registration Statement is no longer required to be kept effective, accruing at a rate: (A) in respect of the Debentures, to each holder of Debentures, (x) with respect to the first 90-day period during which a Registration Default shall have occurred and be continuing, equal to 0.25% per annum of the aggregate principal amount of the Debentures, and (y) with respect to the period commencing on the 91st day following the day the Registration Default shall have occurred and be continuing, equal to 0.50% per annum of the aggregate principal amount of the Debentures; provided that in no event shall Liquidated Damages accrue at a rate per year exceeding 0.50% of the aggregate principal amount of the Debentures; and (B) in respect of the Debentures that are Transfer Restricted Securities submitted for conversion into Common Stock during the existence of a Registration Default with respect to the Common Stock, the holder will not be entitled to receive any Liquidated Damages with respect to such Common Stock but (x) will be entitled to a conversion rate adjustment in accordance with the terms of the Debentures as set forth in the Indenture and (y) will receive from the Company on the settlement date with respect to such conversion, accrued and unpaid Liquidated Damages calculated in accordance with paragraph (A) to the Conversion Date (as defined in the Indenture); and (C) in respect of Common Stock issued upon conversion of Debentures, each holder of such Common Stock will not be entitled to any Liquidated Damages if the Registration Default with respect to such Common Stock occurs after the holder has converted the Debentures into Common Stock. (b) All accrued Liquidated Damages shall be paid in arrears to Record Holders by the Company on each Liquidated Damages Payment Date. Upon the cure of all Registration Defaults relating to any particular Transfer Restricted Security, the accrual of applicable Liquidated Damages will cease. All obligations of the Company set forth in this Section 3 that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such Transfer Restricted Security shall have been satisfied in full. The Liquidated Damages set forth above shall be the exclusive monetary remedy available to the Holders of Transfer Restricted Securities for each Registration Default. 4. Registration Procedures. (a) In connection with the Shelf Registration Statement, the Company shall comply with all the provisions of Section 4(b) hereof and shall use its commercially reasonable efforts to 7 effect such registration to permit the sale of the Transfer Restricted Securities, and pursuant thereto, shall prepare and file with the Commission a Shelf Registration Statement as prescribed by Section 2(a)(i) relating to the registration on any appropriate form under the Securities Act, or otherwise make available for use by Holders a previously filed Shelf Registration Statement. (b) In connection with the Shelf Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities, the Company shall: (i) Subject to any notice by the Company in accordance with this Section 4(b) of the existence of any fact or event of the kind described in Section 4(b)(iv)(D), use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective during the Effectiveness Period; upon the occurrence of any event that would cause the Shelf Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the Effectiveness Period, the Company shall file promptly a post-effective amendment to the Shelf Registration Statement or an amendment or supplement to the related Prospectus or file any other required document, in the case of clause (A), correcting any such misstatement or omission, and, in the case of either clause (A) or (B), use its commercially reasonable efforts to cause any such amendment to become effective and the Shelf Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable thereafter. (ii) Notwithstanding Section 4(b)(i) hereof, the Company may suspend the effectiveness of the Shelf Registration Statement (each such period, a "SUSPENSION PERIOD"): (x) if an event occurs and is continuing as a result of which the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein would, in the Company's judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (y) if the Company determines in good faith that the disclosure of a material event at such time would be seriously detrimental to the Company and its subsidiaries. Upon the occurrence of any event described in clauses (x) and (y) of this Section 4(b)(ii), the Company shall give notice to the Holders that the availability of the Shelf Registration is suspended and, upon actual receipt of any such notice, each Holder agrees not to sell any Transfer Restricted Securities pursuant to the Shelf Registration until such Holder's receipt of copies of the supplemented or amended Prospectus provided for in Section 4(b) hereof. The period during which the availability of the Shelf Registration and any Prospectus is suspended (the "SUSPENSION PERIOD") shall not exceed 30 days in any 90-day period, provided that, in the event the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which the Company determines in good faith would be reasonably likely to impede the Company's ability to consummate such transaction, the Company may extend a Suspension Period from 30 days to 45 days; provided, further, that Suspension Periods shall not exceed an aggregate of 90 days in any 360-day period. (iii) Prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep 8 the Shelf Registration Statement effective during the Effectiveness Period; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rule 424 under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all Transfer Restricted Securities covered by the Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth or to be set forth in the Shelf Registration Statement or supplement to the Prospectus. (iv) Advise the selling Holders and any Initial Purchaser that has provided in writing to the Company a telephone or facsimile number and address for notices, promptly and, if requested by such selling Holders, to confirm such advice in writing (which notice pursuant to clauses (B) through (E) below shall be accompanied by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension): (A) when the Prospectus, any Prospectus supplement, any post-effective amendment or any Issuer Free Writing Prospectus has been filed, and, with respect to the Shelf Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments or supplements to the Shelf Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement under the Securities Act or of any notice that would prevent its use, or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, (D) of the existence of any fact or the happening of any event, during the Effectiveness Period, that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Shelf Registration Statement or the Prospectus in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading, or (E) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement. (v) If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement or any notice that would prevent its use, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws, the Company shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time, including, if necessary, by filing an amendment to the Shelf 9 Registration Statement or a new Shelf Registration Statement and using its commercially reasonable efforts to have such amendment or new Shelf Registration Statement declared effective, and will provide to each Holder who is named in the Shelf Registration Statement prompt notice of the withdrawal of any such order or of the filing or effectiveness of any such amendment or new registration statement. (vi) Make available at reasonable times for inspection by one or more representatives of the selling Holders, designated in writing by a Majority of Holders whose Transfer Restricted Securities are included in the Shelf Registration Statement, and one counsel retained by such selling Holders and any underwriter participating in any disposition pursuant to the Shelf Registration Statement, all financial and other records, pertinent corporate documents and properties of the Company as shall be reasonably necessary to enable them to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act, and cause the Company's officers, directors, managers and employees to supply all information reasonably requested by any such representative or representatives of the selling Holders or counsel in connection therewith. (vii) If requested by any selling Holders or the Representatives, promptly incorporate in the Shelf Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Transfer Restricted Securities. (viii) Deliver to each selling Holder, without charge, as many copies of the Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto, and any Issuer Free Writing Prospectus, as such Persons reasonably may request; subject to Section 4(b)(ii) and subject to any notice by the Company in accordance with this Section 4(b) of the existence of any fact or event of the kind described in Section 4(b)(iv)(B) through (E), the Company hereby consents to the use of the Prospectus and any amendment or supplement thereto, and any Issuer Free Writing Prospectus, by each of the selling Holders in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto. (ix) Before any public offering of Transfer Restricted Securities, cooperate with the selling Holders and their one counsel representing all of the selling Holders in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions in the United States as the selling Holders may reasonably request and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration Statement; provided, however, that the Company shall not be required (A) to register or qualify as a foreign corporation or a dealer of securities where it is not now so qualified or to take any action that would subject it to the service of process in any jurisdiction where it is not now so subject, other than service of process for suits arising out of the Initial Placement or any offering pursuant to the Shelf Registration Statement, or (B) to subject itself to general or unlimited service of process or to taxation in any such jurisdiction if they are not now so subject. (x) Unless any Transfer Restricted Securities shall be in book-entry form only, cooperate with the selling Holders to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any 10 restrictive legends (unless required by applicable securities laws); and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the Holders may reasonably request at least two Business Days before any sale of Transfer Restricted Securities. (xi) Use its commercially reasonable efforts to cause the Transfer Restricted Securities covered by the Shelf Registration Statement to be registered with or approved by such other U.S. governmental agencies or authorities as may be reasonably necessary to enable the seller or sellers thereof to consummate the disposition of such Transfer Restricted Securities. (xii) Subject to Section 4(b)(ii) hereof, if any fact or event contemplated by Section 4(b)(iv)(B) through (D) hereof shall exist or have occurred, use its commercially reasonable efforts to prepare a supplement or post-effective amendment to the Shelf Registration Statement, related Prospectus (including by means of an Issuer Free Writing Prospectus), relevant Issuer Free Writing Prospectus or any document incorporated therein by reference or to file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, none of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus will contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus and any such Issuer Free Writing Prospectus, in the light of the circumstances in which they are made) not misleading. (xiii) Provide CUSIP numbers for all Transfer Restricted Securities not later than the effective date of the Shelf Registration Statement and provide the Trustee under the Indenture with certificates for the Debentures that are in a form eligible for deposit with The Depository Trust Company. (xiv) Reasonably cooperate and assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of the NASD. (xv) Otherwise use its commercially reasonable efforts to comply in all material respects with all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act. (xvi) Make generally available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act as soon as practicable after the effective date of the Shelf Registration Statement and in any event no later than 40 days after the end of the 12-month period (or 60 days, if such period is a fiscal year) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Shelf Registration Statement. (xvii) Use its commercially reasonable efforts to cause the Indenture to be qualified under the TIA not later than the effective date of the Shelf Registration Statement required by this Agreement (or the time when the registration as to the Debentures under the Shelf Registration Statement is required to become effective hereunder), and, in connection therewith, reasonably cooperate with the Trustee and the holders of Debentures to effect such changes to the Indenture as may be required for such 11 Indenture to be so qualified in accordance with the terms of the TIA; and execute and use its commercially reasonable efforts to cause the Trustee thereunder to execute all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner. In the event that any such amendment or modification referred to in this Section 4(b)(xvii) involves the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture. (xviii) Use its commercially reasonable efforts to cause all Common Stock covered by the Shelf Registration Statement to be listed or quoted, as the case may be, on each securities exchange or automated quotation system on which Common Stock is then listed or quoted. (xix) Provide to each Holder upon written request each document filed with the Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act after the effective date of the Shelf Registration Statement, unless such document is available through the Commission's EDGAR system. (xx) Use its commercially reasonable efforts, if the Debentures have been rated prior to the initial sale of such Debentures, to confirm such ratings will apply to the Debentures covered by the Shelf Registration Statement. (xxi) In connection with any underwritten offering conducted pursuant to Section 8 hereof, make such representations and warranties to the Holders of Securities registered thereunder and the underwriters, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings; (xxii) In connection with any underwritten offering conducted pursuant to Section 8 hereof, obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters) addressed to each selling Holder and the underwriters, if any, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters; (xxiii) In connection with any underwritten offering conducted pursuant to Section 8, hereof, obtain "comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Shelf Registration Statement), addressed to each selling Holder of Securities registered thereunder and the underwriters, in customary form and covering matters of the type customarily covered in "comfort" letters in connection with primary underwritten offerings; and (xxiv) In connection with any underwritten offering conducted pursuant to Section 8 hereof, deliver such documents and certificates as may be reasonably requested by the Majority Holders and the Managing Underwriters, including those to evidence compliance with Section 4(b)(iii) hereof and with any customary conditions contained in 12 any underwriting agreement entered into by the Company in connection with such offering. (xxv) In connection with underwritten offering conducted pursuant to Section 8 hereof, the Company shall, if requested, promptly include or incorporate in a Prospectus supplement or post-effective amendment to the Shelf Registration Statement such information as the Managing Underwriters reasonably agree should be included therein and to which the Company does not reasonably object and shall use its commercially reasonable efforts to make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after it is notified of the matters to be included or incorporated in such Prospectus supplement or post-effective amendment. (xxvi) Use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Transfer Restricted Securities covered by the Shelf Registration Statement. (xxvii) Enter into customary agreements (including, if requested, an underwriting agreement in customary form) and take all other reasonably appropriate actions in order to expedite or facilitate the registration or the disposition of the Transfer Restricted Securities. The actions set forth in clauses (xxii), (xxiii), (xxiv) and (xxv) of this Section 4(b) shall be performed at each closing under any underwriting or similar agreement as and to the extent required thereunder. (c) Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the Company of the existence of any fact of the kind described in Section 4(b)(iv)(B) through (E) hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the Shelf Registration Statement and use of the Prospectus and any related Free Writing Prospectuses until: (i) such Holder has received copies of the supplemented or amended Prospectus or applicable Issuer Free Writing Prospectus contemplated by Section 4(b)(xii) hereof; or (ii) such Holder is advised in writing by the Company that the use of the Prospectus and any applicable Issuer Free Writing Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Transfer Restricted Securities and any Issuer Free Writing Prospectus that was current at the time of receipt of such Suspension Notice. (d) Each Holder agrees by acquisition of a Transfer Restricted Security, that no Holder shall be entitled to sell any of such Transfer Restricted Securities pursuant to a Registration Statement, or to receive a Prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to Section 2(b) or Section 2(f) hereof (including the information required to be included in such Notice and Questionnaire) and the information set forth in the next sentence. The Company may require each Notice Holder of Debentures to be sold pursuant to the Shelf Registration Statement to furnish to the Company 13 such information regarding the Holder and the distribution of such Debentures as the Company may from time to time reasonably require for inclusion in such Registration Statement. Each Notice Holder agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Notice Holder not misleading and any other information regarding such Notice Holder and the distribution of such Transfer Restricted Securities as the Company may from time to time reasonably request in writing. The Company may exclude from such Shelf Registration Statement the Debentures of any Holder that fails to furnish such information within a reasonable time after receiving such request. 5. Registration Expenses. All reasonable expenses incident to the Company's performance of or compliance with this Agreement shall be borne by the Company regardless of whether a Shelf Registration Statement becomes effective, including, without limitation: (a) all registration and filing fees and expenses (including filings made with the NASD); (b) all fees and expenses of compliance with federal securities and state Blue Sky or securities laws; (c) all expenses of printing (including printing of Prospectuses, Issuer Free Writing Prospectuses and certificates for the Common Stock to be issued upon conversion of the Debentures) and the Company's expenses for messenger and delivery services and telephone; (d) all fees and disbursements of counsel to the Company; (e) all application and filing fees in connection with listing (or authorizing for quotation) the Common Stock on a national securities exchange or automated quotation system pursuant to the requirements hereof; and (f) all fees and disbursements of independent certified public accountants of the Company. The Company shall bear its internal expenses (including, without limitation, all salaries and expenses of their officers and employees performing legal, accounting or other duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Company. The Company shall pay all expenses customarily borne by issuers in an underwritten offering as set forth in Section 8(c) hereof. 6. Indemnification And Contribution. (a) The Company agrees to indemnify and hold harmless each Holder of Transfer Restricted Securities (including each Initial Purchaser), its directors, officers, employees and agents, and each person, if any, who controls any Holder within the meaning of the Securities Act or the Exchange Act (each, an "INDEMNIFIED HOLDER"), against any loss, claim, damage, liability or expense, as incurred, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or expense relating to resales of the Transfer Restricted Securities) (collectively, "LOSSES"), to which such Indemnified Holder may become subject, insofar as any such Loss arises out of or is based upon: 14 (i) any untrue statement or alleged untrue statement of a material fact contained in the Shelf Registration Statement as originally filed or in any amendment thereof, or the omission or alleged omission to state therein any material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact, in each case, necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and to reimburse each Indemnified Holder for any and all expenses including the reasonable fees and disbursements of counsel as such expenses are reasonably incurred by such Indemnified Holder in connection with investigating, defending, settling, compromising or paying any such Loss; provided, however, that the foregoing indemnity agreement shall not apply to any Loss to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder (or its related Indemnified Holder) expressly for use therein. The indemnity agreement set forth in this Section 6(a) shall be in addition to any liabilities that the Company may otherwise have. (b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who sign the Shelf Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (i) to the same extent as the foregoing indemnity from the Company to each such Holder, but only with reference to written information relating to such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing indemnity and (ii) against any Loss, joint or several, including, but not limited to, any Loss relating to resales of the Transfer Restricted Securities, to which such person may become subject, insofar as any such Loss arises out of, or is based upon any Free Writing Prospectus used by such Holder without the prior consent of the Issuer, and in connection with any underwritten offering, the underwriters, provided that the indemnification obligation in this clause (ii) shall be several, not joint and several, among the Holders who used such Free Writing Prospectus. This indemnity agreement set forth in this Section shall be in addition to any liabilities which any such Holder may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 6, notify the indemnifying party in writing of the commencement thereof, but the failure to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the 15 indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party's election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (other than local counsel), reasonably approved by the indemnifying party, representing the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party. (d) The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without its written consent, which shall not be withheld unreasonably, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any Loss by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 6(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (x) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (y) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. (e) If the indemnification provided for in Section 6 is for any reason unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any Loss referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any Loss referred to therein: (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Holders, on the other hand, from the offering and sale of the Transfer Restricted Securities, on the one hand, and a Holder with respect to the sale by such Holder of the Transfer Restricted Securities, on the other hand, or 16 (ii) if the allocation provided by Section (6)(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in Section 6(e)(i) above but also the relative fault of the Company, on the one hand, and the Holders, on the other hand, in connection with the statements or omissions or alleged statements or omissions that resulted in such Loss, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Holders, on the other hand, in connection with such offering and such sale of the Transfer Restricted Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Debentures purchased under the Purchase Agreement (before deducting expenses) received by the Company and the total proceeds received by the Holders with respect to their sale of Transfer Restricted Securities. The relative fault of the Company, on the one hand, and the Holders, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Holders, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 6(e) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 6(e). The amount paid or payable by a party as a result of the Loss referred to above shall be deemed to include, subject to the limitations set forth in Section 6(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. Notwithstanding the provisions of this Section 6, in no event will (i) any Holder be required to undertake liability to any person under this Section 6 for any amounts in excess of the dollar amount of the proceeds to be received by such Holder from the sale of such Holder's Transfer Restricted Securities (after deducting any fees, discounts and commissions applicable thereto) pursuant to any Shelf Registration Statement under which such Transfer Restricted Securities are to be registered under the Securities Act and (ii) any underwriter be required to undertake liability to any person hereunder for any amounts in excess of the discount or commission payable to such underwriter with respect to the Transfer Restricted Securities underwritten by it and distributed to the public. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders' obligations to contribute as provided in this Section 6(e) are several and not joint. (f) The provisions of this Section 6 shall remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 6 hereof, and will survive the sale by a Holder of Transfer Restricted Securities. 7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long as any Transfer Restricted Securities remain outstanding and during any period in which the Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to use its commercially reasonable efforts to make available, upon request of any Holder, to such Holder of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Securities designated by such 17 Holder, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to use its commercially reasonable efforts to make all filings required thereby in a timely manner in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144. 8. Underwritten Registrations. (a) Any Holder of Transfer Restricted Securities who desires to do so may sell Transfer Restricted Securities (in whole or in part) in an underwritten offering; provided that (i) the Electing Holders of at least a majority in aggregate principal amount of the Transfer Restricted Securities then covered by the Shelf Registration Statement shall request such an offering and (ii) at least such aggregate principal amount of such Transfer Restricted Securities shall be included in such offering; and provided further that the Company shall not be obligated to participate in more than one underwritten offering during the Effectiveness Period. Upon receipt of such a request, the Company shall provide all Holders of Transfer Restricted Securities written notice of the request, which notice shall inform such Holders that they have the opportunity to participate in the offering. If any of the Transfer Restricted Securities covered by the Shelf Registration Statement are to be sold in an underwritten offering, the Managing Underwriters shall be selected by the Majority Holders; provided, however, that such underwriters must be reasonably satisfactory to the Company. (b) No person may participate in any underwritten offering pursuant to the Shelf Registration Statement unless such person (i) agrees to sell such person's Transfer Restricted Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements; (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; and (iii) if such Holder is not then a Notice Holder, such Holder returns a completed and signed Notice and Questionnaire to the Company in accordance with Section 2(b) or Section 2(f) hereof within a reasonable amount of time before such underwritten offering. (c) The Holders participating in any underwritten offering shall be responsible for any underwriting discounts and commissions and fees and, subject to Section 5 hereof, expenses of their own counsel. The Company shall pay all reasonable expenses customarily borne by issuers in an underwritten offering, including but not limited to filing fees, the reasonable fees and disbursements of its counsel and independent public accountants and any printing expenses incurred in connection with such underwritten offering. Notwithstanding the foregoing or the provisions of Section 4(b)(xxv) hereof, upon receipt of a request from the Managing Underwriter or a representative of holders of a majority of the Transfer Restricted Securities to be included in an underwritten offering to prepare and file an amendment or supplement to the Shelf Registration Statement and Prospectus in connection with an underwritten offering, the Company may delay the filing of any such amendment or supplement for up to 90 days if the Board of Directors of the Company shall have determined in good faith that the Company has a bona fide business reason for such delay. 9. Miscellaneous. (a) Free Writing Prospectuses. Each Holder represents that it has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Transfer Restricted 18 Securities without the prior express written consent of the Company and, in connection with any underwritten offering, the underwriters. Any such Free Writing Prospectus consented to by the Company and, if applicable, the underwriters, as the case may be, is hereinafter referred to as a "PERMITTED FREE WRITING PROSPECTUS." The Company represents and agrees that it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, including in respect of timely filing with the Commission, legending and recordkeeping. (b) Remedies. The Company acknowledges and agrees that any failure by the Company to comply with its obligations under Section 2 hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely, and that, in the event of any such failure, in addition to being entitled to exercise all rights provided to it herein, in the Indenture or in the Purchase Agreement or granted by law, including recovery of liquidated or other damages, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations under Section 2 hereof. The Company further agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. (c) Actions Affecting Transfer Restricted Securities. The Company shall not, directly or indirectly, take any action with respect to the Transfer Restricted Securities as a class that would materially and adversely affect the ability of the Holders of Transfer Restricted Securities to include such Transfer Restricted Securities in a registration undertaken pursuant to this Agreement. (d) No Inconsistent Agreements. The Company has not, as of the date hereof, entered into, nor shall it, on or after the date hereof, enter into, any agreement that is still in effect with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. In addition, the Company shall not grant to any of its securityholders (other than the Holders of Transfer Restricted Securities in such capacity) the right to include any of its securities in the Shelf Registration Statement provided for in this Agreement other than the Transfer Restricted Securities. (e) Amendments and Waivers. This Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given, unless the Company has obtained the written consent of a Majority of Holders; provided, however, that with respect to any matter that directly or indirectly adversely affects the rights of any Initial Purchaser hereunder, the Company shall obtain the written consent of each such Initial Purchaser against which such amendment, qualification, supplement, waiver or consent is to be effective. Notwithstanding the foregoing (except the foregoing proviso), a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders whose securities are being sold pursuant to a Shelf Registration Statement and does not directly or indirectly adversely affect the rights of other Holders, may be given by the Majority Holders, determined on the basis of Transfer Restricted Securities being sold rather than registered under such Shelf Registration Statement. (f) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, first class mail (registered or certified, return receipt requested), facsimile transmission, or air courier guaranteeing overnight delivery: 19 (i) if to a Holder, at the address set forth on the records of the registrar under the Indenture or the transfer agent of the Common Stock, as the case may be; and (ii) if to the Company, initially at its address set forth in the Purchase Agreement, With a copy to: Calfee, Halter & Griswold LLP 1400 McDonald Investment Center 800 Superior Avenue Cleveland, Ohio 44114 Facsimile: (216) 241-0816 Attention: Douglas A. Neary All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery. Any party hereto may change the address for receipt of communications by giving written notice to the others. (g) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders of Transfer Restricted Securities. The Company hereby agrees to extend the benefit of this Agreement to any Holder and any such Holder may specifically enforce the provisions of this Agreement as if an original party hereto. (h) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (i) Jurisdiction. The Company agrees that any suit, action or proceeding against the Company brought by any Holder or Initial Purchaser, the directors, officers, employees, Affiliates and agents of any Holder or Initial Purchaser, or by any person who controls any Holder or Initial Purchaser, arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. To the extent that the Company may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of this Agreement, to the fullest extent permitted by law. (j) Debentures Held by the Company or Their Affiliates. Whenever the consent or approval of Holders of a specified percentage of Transfer Restricted Securities is required hereunder, Transfer Restricted Securities held by the Company or its Affiliates (other than subsequent Holders if such subsequent Holders are deemed to be Affiliates solely by reason of 20 their holding of such Transfer Restricted Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. (k) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (l) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. (m) Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law. (n) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Company with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 21 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. INVACARE CORPORATION, an Ohio corporation By: /s/ Gerald B. Blouch ------------------------------------- Name: Gerald B. Blouch Title: President and COO [Resale Registration Rights Agreement Signature Page] SUBSIDIARY GUARANTORS ADAPTIVE SWITCH LABORATORIES, INC. INVACARE FLORIDA CORPORATION INVACARE CREDIT CORPORATION THE AFTERMARKET GROUP, INC. THE HELIXX GROUP, INC. CHAMPION MANUFACTURING INC. HEALTHTECH PRODUCTS, INC. INVACARE CANADIAN HOLDINGS, INC. INVACARE INTERNATIONAL CORPORATION By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President [Resale Registration Rights Agreement Signature Page] 2 KUSCHALL, INC. ALTIMATE MEDICAL, INC. INVACARE SUPPLY GROUP, INC. INVACARE HOLDINGS, LLC By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President [Resale Registration Rights Agreement Signature Page] 3 FREEDOM DESIGNS, INC. By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President [Resale Registration Rights Agreement Signature Page] 4 MEDBLOC, INC. GARDEN CITY MEDICAL INC. By: /s/ Bradford J. Patrick ------------------------------------ Name: Bradford J. Patrick Title: Assistant Secretary [Resale Registration Rights Agreement Signature Page] 5 INVACARE FLORIDA HOLDINGS, LLC By: /s/ Gerald B. Blouch ------------------------------------ Name: Gerald B. Blouch Title: President [Resale Registration Rights Agreement Signature Page] 6 The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written: BANC OF AMERICA SECURITIES LLC KEYBANC CAPITAL MARKETS, A DIVISION OF MCDONALD INVESTMENTS INC. BMO CAPITAL MARKETS CORP. SUNTRUST CAPITAL MARKETS, INC. By: Banc of America Securities LLC By: /s/ Derek Dillon --------------------------------- Name: Derek Dillon ------------------------------- Title: Managing Director ------------------------------ [Resale Registration Rights Agreement Signature Page] 7 EX-4.4 5 l24661aexv4w4.txt EX-4.4 Exhibit 4.4 EXECUTION VERSION REGISTRATION RIGHTS AGREEMENT by and among Invacare Corporation The Guarantors Named Herein and Banc of America Securities LLC KeyBanc Capital Markets, a Division of McDonald Investments Inc. BMO Capital Markets Corp. SunTrust Capital Markets, Inc. Dated as of February 12, 2007 Registration Rights Agreement This Registration Rights Agreement (this "Agreement") is made and entered into as of February 12, 2007, by and among Invacare Corporation, an Ohio corporation (the "Company"), and the subsidiaries of the Company listed on the signature page hereto (collectively, the "Guarantors"), and Banc of America Securities LLC, KeyBanc Capital Markets, a Division of McDonald Investments Inc., BMO Capital Markets Corp., and SunTrust Capital Markets, Inc. (collectively, the "Initial Purchasers"), each of whom has agreed to purchase the Company's 9 3/4% Senior Notes due 2015 (the "Initial Notes") fully and unconditionally guaranteed by the Guarantors (the "Guarantees") pursuant to the Purchase Agreement (as defined below). The Initial Notes and the Guarantees attached thereto are herein collectively referred to as the "Initial Securities." This Agreement is made pursuant to the Purchase Agreement, dated February 7, 2007 (the "Purchase Agreement"), among the Company, the Guarantors and the Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii) for the benefit of the holders from time to time of the Initial Securities, including the Initial Purchasers. In order to induce the Initial Purchasers to purchase the Initial Securities, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligations of the Initial Purchasers set forth in Section 5(h) of the Purchase Agreement. The parties hereby agree as follows: SECTION 1. Definitions. In addition to other terms defined herein, as used in this Agreement, the following capitalized terms shall have the following meanings: Additional Interest Payment Date: With respect to the Initial Securities, each Interest Payment Date. Broker-Dealer: Any broker or dealer registered under the Exchange Act. Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which banking institutions or trust companies located in New York, New York are authorized or obligated to be closed. Closing Date: The date of this Agreement. Commission: The Securities and Exchange Commission. Company: As defined in the preamble hereto. Consummate: A registered Exchange Offer shall be deemed "Consummated" for purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the Registrar under the Indenture of Exchange Securities in the same aggregate principal amount as the aggregate principal amount of Initial Securities that were tendered by Holders thereof pursuant to the Exchange Offer. Effectiveness Target Date: As defined in Section 5 hereof. Exchange Act: The Securities Exchange Act of 1934, as amended. Exchange Offer: The registration by the Company under the Securities Act of the Exchange Securities pursuant to a Registration Statement pursuant to which the Company offers the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders. Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the related Prospectus. Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Initial Securities to certain "qualified institutional buyers," as such term is defined in Rule 144A under the Securities Act and to certain non-U.S. persons pursuant to Regulation S under the Securities Act. Exchange Securities: The 9 3/4% Senior Notes due 2015, of the same series under the Indenture as the Initial Securities, to be issued to Holders in exchange for Transfer Restricted Securities pursuant to this Agreement. Guarantees: As defined in the preamble hereto. Guarantors: As defined in the preamble hereto. Holders: As defined in Section 2(b) hereof. Indemnified Holder: As defined in Section 8(a) hereof. Indenture: The Indenture, dated as of February 12, 2007, by and among the Company, the Guarantors and Wells Fargo Bank, N.A., as trustee (the "Trustee"), pursuant to which the Securities are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof. Initial Purchasers: As defined in the preamble hereto. Initial Notes: As defined in the preamble hereto. Initial Placement: The issuance and sale by the Company of the Initial Securities to the Initial Purchasers pursuant to the Purchase Agreement. Initial Securities: As defined in the preamble hereto. Interest Payment Date: As defined in the Indenture and the Securities. Issuer Free Writing Prospectus: As defined in Section 4(c) hereof. NASD: National Association of Securities Dealers Inc. Person: An individual, partnership, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. 2 Prospectus: The prospectus included in a Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus. Registration Default: As defined in Section 5 hereof. Registration Statement: Any registration statement of the Company relating to (a) an offering of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the provisions of this Agreement, in each case, including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein. Rule 430B Information: Any information included in a Prospectus that was omitted from the Registration Statement at the time it became effective but that is deemed to be part of and included in such Registration Statement pursuant to Rule 430B under the Securities Act. Securities: The Initial Securities and the Exchange Securities. Securities Act: The Securities Act of 1933, as amended. Shelf Filing Deadline: As defined in Section 4(a) hereof. Shelf Registration Statement: As defined in Section 4(a) hereof. Trust Indenture Act: The Trust Indenture Act of 1939, as amended. Transfer Restricted Securities: Each Initial Security, until the earliest to occur of (a) the date on which such Initial Security is exchanged in the Exchange Offer for an Exchange Security entitled to be resold to the public by the Holder thereof without complying with the prospectus delivery requirements of the Securities Act, (b) the date on which such Initial Security has been disposed of pursuant to and in accordance with a Shelf Registration Statement, (c) the date on which such Initial Security is distributed to the public pursuant to Rule 144 under the Securities Act or by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the Exchange Offer Registration Statement (including delivery of the Prospectus contained therein), and (d) the date on which such Initial Security becomes eligible to be resold without restriction pursuant to Rule 144(k) under the Securities Act. Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public. SECTION 2. Securities Subject to this Agreement. (a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement are the Transfer Restricted Securities. (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer Restricted Securities (each, a "Holder") whenever such Person owns Transfer Restricted Securities. Holders may include one or more of the Initial Purchasers from time to time. 3 SECTION 3. Registered Exchange Offer. (a) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the procedures set forth in Section 6(a) hereof have been complied with), each of the Company and the Guarantors shall (i) use commercially reasonable efforts to cause to be filed with the Commission on or prior to the date that is 90 days after the Closing Date (or if such 90th day is not a Business Day, the next succeeding Business Day), a Registration Statement under the Securities Act relating to the Exchange Securities and the Exchange Offer, (ii) use its commercially reasonable efforts to cause such Registration Statement to become effective at the earliest possible time, but in no event later than 180 days after the Closing Date (or if such 180th day is not a Business Day, the next succeeding Business Day), and (iii) in connection with the foregoing, use commercially reasonable efforts to (A) file all pre-effective amendments to such Registration Statement as may be necessary in order to cause such Registration Statement to become effective, (B) if applicable, file a post-effective amendment to such Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings in connection with the registration and qualification of the Exchange Securities to be made under the state securities or blue sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer. The Exchange Offer Registration Statement shall be on the appropriate form permitting registration of the Exchange Securities to be offered in exchange for the Transfer Restricted Securities and to permit resales of Initial Securities held by Broker-Dealers as contemplated by Section 3(c) hereof. (b) The Company and the Guarantors shall use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be effective continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than 30 calendar days and not more than 45 calendar days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to the Holders. The Company shall cause the Exchange Offer to comply with all applicable federal and state securities laws applicable to the Company. No securities other than the Exchange Securities shall be included in the Exchange Offer Registration Statement. The Company shall use its commercially reasonable efforts to cause the Exchange Offer to be Consummated no later than 210 days after the Closing Date (or if such 210th day is not a Business Day, the next succeeding Business Day). (c) The Company shall indicate in a "Plan of Distribution" section contained in the Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds Initial Securities that are Transfer Restricted Securities and that were acquired for its own account as a result of market-making activities or other trading activities (other than Transfer Restricted Securities acquired directly from the Company), may exchange such Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of the Exchange Securities received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of Distribution" section shall also contain all other information with respect to such resales by Broker-Dealers that the Commission may require in order to permit such resales pursuant thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer or disclose the amount of Initial Securities held by any such Broker-Dealer except to the extent required by the Commission as a result of a change in policy after the date of this Agreement. Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for resales of 4 Initial Securities acquired by Broker-Dealers for their own accounts as a result of market-making activities or other trading activities, and to ensure that it conforms in all material respects with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period ending on the earlier of (i) 180 days from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities. The Company shall provide sufficient copies of the latest version of such Prospectus to Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the foregoing sentence) period in order to facilitate such resales. SECTION 4. Shelf Registration. (a) Shelf Registration. If (i) the Company is not required to file an Exchange Offer Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a) hereof have been complied with), (ii) for any reason the Exchange Offer is not Consummated within 210 days after the Closing Date (or if such 210th day is not a Business Day, the next succeeding Business Day), or (iii) with respect to any Holder of Transfer Restricted Securities (A) such Holder is prohibited by applicable law or Commission policy from participating in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Initial Securities acquired directly from the Company or one of its affiliates, the Company and the Guarantors shall (x) use their commercially reasonable efforts to cause to be filed a shelf registration statement pursuant to Rule 415 under the Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the "Shelf Registration Statement"), on or prior to the earliest to occur of (1) the 60th day after the date on which the Company determines that it is not required to file the Exchange Offer Registration Statement, (2) the 210th day after the Closing Date (in the case of clause (ii) above) (or if such 210th day is not a Business Day, the next succeeding Business Day) and (3) the 60th day after the date on which the Company receives notice from a Holder of Transfer Restricted Securities or an Initial Purchaser (in the case of clause (iii) above) (or if such 60th day is not a Business Day, the next succeeding Business Day) (such earliest date being the "Shelf Filing Deadline"), which Shelf Registration Statement shall provide for resales of all Transfer Restricted Securities the Holders of which shall have provided the information required pursuant to Section 4(b) hereof; and (y) use their commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective by the Commission on or before the 180th day after the Shelf Filing Deadline (or if such 180th day is not a Business Day, the next succeeding Business Day). Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep such Shelf Registration Statement continuously effective, supplemented and amended as required by the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available for resales of Transfer Restricted Securities by the Holders entitled to the benefit of this Section 4(a), and to ensure that it conforms in all material respects with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least two years following the effective date of such Shelf Registration Statement (or such shorter period 5 that will terminate when all the Initial Securities covered by such Shelf Registration Statement cease to be Transfer Restricted Securities). (b) Provision by Holders of Certain Information in Connection with the Shelf Registration Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading. (c) Issuer Free Writing Prospectuses. The Company represents that any issuer free writing prospectus relating to the Securities (an "Issuer Free Writing Prospectus") (as defined in Rule 433 of the Securities Act) will not include any information that conflicts with the information contained in the Shelf Registration Statement or the Prospectus and, any Issuer Free Writing Prospectus, when taken together with the information in the Shelf Registration Statement and the Prospectus, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. SECTION 5. Additional Interest. If (i) any of the Registration Statements required by this Agreement is not filed with the Commission on or prior to the date specified for such filing in this Agreement, (ii) any of such Registration Statements has not been declared effective by the Commission on or prior to the date specified for such effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has not been Consummated on or prior to the date specified for such consummation in this Agreement or (iv) any Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded immediately by a post effective amendment to such Registration Statement that ceases such failure and that is itself immediately declared effective (each such event referred to in clauses (i) through (iv), a "Registration Default"), the Company hereby agrees that the interest rate borne by the Transfer Restricted Securities shall be increased by 0.25% per annum during the 90-day period immediately following the occurrence of any Registration Default and shall increase by 0.25% per annum at the end of each subsequent 90-day period during which such Registration Default continues, but in no event shall such increase ever exceed a maximum of 1.00% per annum. Following the cure of all Registration Defaults relating to any particular Transfer Restricted Securities, the interest rate borne by the relevant Transfer Restricted Securities will be reduced to the original interest rate borne by such Transfer Restricted Securities; provided, however, that, if after any such reduction in interest rate, a different Registration Default occurs, the interest rate borne by the relevant Transfer Restricted Securities shall again be increased pursuant to the foregoing provisions. All obligations of the Company and the Guarantors to pay additional interest accrued with respect to a Registration Default set forth in the preceding paragraph that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full. SECTION 6. Registration Procedures. (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company and the Guarantors shall comply with all of the provisions of Section 6(c) hereof, shall use their 6 commercially reasonable efforts to effect such exchange to permit the sale of Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof, and shall comply with all of the following provision: (i) As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the Company, prior to the Consummation thereof, a written representation to the Company (which may be contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an affiliate of the Company, (B) it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any Person to participate in, a distribution of the Exchange Securities to be issued in the Exchange Offer, (C) it is acquiring the Exchange Securities in its ordinary course of business and (D) it is not acting on behalf of any person who could not truthfully make the foregoing representations. In addition, all such Holders of Transfer Restricted Securities shall otherwise cooperate in the Company's preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters, and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of Exchange Securities obtained by such Holder in exchange for Initial Securities acquired by such Holder directly from the Company. (b) Shelf Registration Statement. In connection with the Shelf Registration Statement, each of the Company and the Guarantors shall comply with all the provisions of Section 6(c) hereof and shall use its commercially reasonable efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof, and pursuant thereto each of the Company and the Guarantors shall, in accordance with Section 4(a), prepare and file with the Commission a Registration Statement relating to the registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof. (c) General Provisions. In connection with any Exchange Offer Registration Statement, any Shelf Registration Statement and any Prospectus related thereto required by this Agreement to permit the sale or resale of Transfer Restricted Securities (including, without limitation, any Exchange Offer Registration Statement, any Shelf Registration Statement and the related Prospectus required to permit resales of Initial Securities by Broker-Dealers), each of the Company and the Guarantors shall: (i) use its commercially reasonable efforts to keep such Registration Statement continuously effective and provide all requisite financial statements (including, if required by the Securities Act or any regulation thereunder, financial statements of the Guarantors) for the period specified in Section 3 or 4 hereof, as applicable; upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Registration Statement (which may be accomplished to the extent permitted by law by the filing of documents incorporated by reference therein), in 7 the case of clause (A), correcting any such misstatement or omission, and, in the case of either clause (A) or (B), use its commercially reasonable efforts to cause such amendment to be declared effective and such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter; (ii) use its commercially reasonable efforts to prepare and file with the Commission such amendments and post-effective amendments to the applicable Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply in all material respects with the provisions of Rules 424 and 430A under the Securities Act, to the extent applicable, in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all Transfer Restricted Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; (iii) advise the underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue in any material respect, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein not misleading in any material respect. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or blue sky laws, each of the Company and the Guarantors shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time; (iv) furnish without charge to each of the Initial Purchasers, each selling Holder named in any Registration Statement, and each of the underwriter(s), if any, before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or supplements to any such Registration Statement or Prospectus, which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least five Business Days, and the Company will not file any such Registration Statement or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus to which an Initial Purchaser of Transfer Restricted Securities covered by such Registration Statement or the underwriter(s), if any, shall reasonably object in writing within five Business Days after the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy transmission within such period). The objection of an Initial Purchaser or underwriter, if any, shall be deemed to be reasonable if such Registration 8 Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission; (v) make available at reasonable times for inspection by the Initial Purchasers, the managing underwriter(s), if any, participating in any disposition pursuant to such Registration Statement and any attorney or accountant retained by such Initial Purchasers or any of the underwriter(s), all financial and other records, pertinent corporate documents and properties of each of the Company and the Guarantors and cause the Company's and the Guarantors' officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness and to participate in meetings with investors to the extent requested by any Holder, the Initial Purchasers or the managing underwriter(s), if any; provided, however, that any information that is designated by the Company, in good faith, as confidential at the time of delivery of such information shall be kept confidential by the Holders or any such underwriter, attorney or accountant, unless such disclosure is made in connection with a court proceeding or required by law, such Holder or Holders or any such underwriter, attorney or accountant receives a written notification from the Company that such information is no longer confidential, or such information becomes available to the public generally or through a third party without an accompanying obligation of confidentiality; (vi) if requested by any selling Holders or the underwriter(s), if any, promptly incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Transfer Restricted Securities, information with respect to the principal amount of Transfer Restricted Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Transfer Restricted Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (vii) cause the Transfer Restricted Securities covered by the Registration Statement to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Securities covered thereby or the underwriter(s), if any; (viii) furnish to each Initial Purchaser, each selling Holder and each of the underwriter(s), if any, without charge, upon such person's request, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including financial statements and schedules; (ix) deliver to each selling Holder and each of the underwriter(s), if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably may request; each of the Company and the Guarantors hereby consents to the use of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto; 9 (x) enter into such customary agreements (including an underwriting agreement), and make such customary representations and warranties, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any Registration Statement contemplated by this Agreement, all to such extent as may be reasonably requested by any Initial Purchaser or underwriter in connection with any sale or resale pursuant to any Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, each of the Company and the Guarantors shall: (A) furnish to each Initial Purchaser, each selling Holder and each underwriter, if any, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the Consummation of the Exchange Offer and, if applicable, the effectiveness of the Shelf Registration Statement: (1) a certificate, dated the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the case may be, signed by (y) the President or any Vice President and (z) a principal financial or accounting officer of each of the Company and the Guarantors, confirming, as of the date thereof, matters substantially similar to the matters set forth in paragraphs (i), (ii) and (iii) of Section 5(e) of the Purchase Agreement and such other matters as such parties may reasonably request; (2) an opinion of counsel for the Company and the Guarantors, covering matters substantially similar to the matters set forth in Section 5(c) of the Purchase Agreement and such other matters as such parties may reasonably request; and (3) a customary comfort letter, dated the date of effectiveness of the Shelf Registration Statement, from the Company's independent accountants, in the customary form and covering matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings; (B) set forth in full or incorporate by reference in the underwriting agreement, if any, the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (C) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with Section 6(c)(x)(A) hereof and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company or any of the Guarantors pursuant to this Section 6(c)(x), if any. If at any time the representations and warranties of the Company and the Guarantors contemplated in Section 6(c)(x)(A)(1) hereof cease to be true and correct, the Company or the Guarantors shall so advise the Initial Purchasers and the underwriter(s), if any, and each selling Holder promptly and, if requested by such Persons, shall confirm such advice in writing; (xi) prior to any public offering of Transfer Restricted Securities, cooperate with the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the 10 registration and qualification of the Transfer Restricted Securities under the state securities or blue sky laws of such jurisdictions as the selling Holders or underwriter(s), if any, may request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the Shelf Registration Statement; provided, however, that none of the Company or the Guarantors shall be required to register or qualify as a foreign corporation where it is not then so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Registration Statement, in any jurisdiction where it is not then so subject; (xii) issue, upon the request of any Holder of Initial Securities covered by the Exchange Offer Registration Statement, Exchange Securities having an aggregate principal amount equal to the aggregate principal amount of Initial Securities surrendered to the Company by such Holder in exchange therefor or being sold by such Holder; such Exchange Securities to be registered in the name of such Holder or in the name of the purchaser(s) of such Exchange Securities, as the case may be; in return, the Initial Securities held by such Holder shall be surrendered to the Company for cancellation; (xiii) cooperate with the selling Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends, if appropriate; and enable such Transfer Restricted Securities to be in such denominations (in $1,000 increments) and registered in such names as the Holders or the underwriter(s), if any, may request at least two Business Days prior to any sale of Transfer Restricted Securities made by such Holders or underwriter(s); (xiv) use its commercially reasonable efforts to cause the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities in accordance with this Agreement, subject to the proviso contained in Section 6(c)(xi) hereof; (xv) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or have occurred, use its commercially reasonable efforts to prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading; (xvi) provide a CUSIP number for all Transfer Restricted Securities not later than the effective date of the Registration Statement covering such Transfer Restricted Securities and provide the Trustee under the Indenture with printed certificates for such Transfer Restricted Securities which are in a form eligible for deposit with the Depository Trust Company and take all other action reasonably necessary to ensure that all such Transfer Restricted Securities are eligible for deposit with the Depository Trust Company; (xvii) cooperate and assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter (including any "qualified independent underwriter") that is required to be retained in accordance with the rules and regulations of the NASD; 11 (xviii) otherwise use its commercially reasonable efforts to comply in all material respects with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) for the twelve-month period (A) commencing at the end of any fiscal quarter in which Transfer Restricted Securities are sold to underwriters in a firm commitment or best efforts Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement; (xix) cause the Indenture to be qualified under the Trust Indenture Act not later than the effective date of the first Registration Statement required by this Agreement, and, in connection therewith, cooperate with the Trustee and the Holders of Securities to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and to execute and use its commercially reasonable efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner; and (xx) cause all Securities covered by the Registration Statement to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed if requested by the Holders of a majority in aggregate principal amount of Initial Securities or the managing underwriter(s), if any. Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of such notice. In the event the Company shall give any such notice, the time period regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof or shall have received the Advice; provided, however, that no such extension shall be taken into account in determining whether Additional Interest is due pursuant to Section 5 hereof or the amount of such Additional Interest, it being agreed that the Company's option to suspend use of a Registration Statement pursuant to this paragraph shall be treated as a Registration Default for purposes of Section 5 hereof. SECTION 7. Registration Expenses. (a) All reasonable expenses incident to the Company's and the Guarantors' performance of or compliance with this Agreement will be borne by the Company and the Guarantors jointly and severally, regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made by any Initial Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of any "qualified independent underwriter" and its counsel that may be required by the rules and regulations of the NASD)); (ii) all fees and expenses of 12 compliance with federal securities and state securities or blue sky laws; (iii) all expenses of printing (including printing certificates for the Exchange Securities to be issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all reasonable fees and disbursements of counsel for the Company, the Guarantors and, subject to Section 7(b) hereof, the Holders of Transfer Restricted Securities; (v) all application and filing fees in connection with listing the Exchange Securities on a securities exchange or automated quotation system pursuant to the requirements thereof; and (vi) all fees and disbursements of independent certified public accountants of the Company and the Guarantors (including the expenses of any special audit and comfort letters required by or incident to such performance). Each of the Company and the Guarantors will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Company or the Guarantors. (b) In connection with any Registration Statement required by this Agreement (including, without limitation, the Exchange Offer Registration Statement and the Shelf Registration Statement), the Company and the Guarantors, jointly and severally, will reimburse the Initial Purchasers and the Holders of Transfer Restricted Securities being tendered in the Exchange Offer and/or resold pursuant to the "Plan of Distribution" contained in the Exchange Offer Registration Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be Fried, Frank, Harris, Shriver & Jacobson LLP or such other counsel as may be chosen by the Holders of a majority in principal amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being prepared. SECTION 8. Indemnification. (a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold harmless (i) each Holder (including, without limitation, the Initial Purchasers) and (ii) each Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being hereinafter referred to as a "controlling person") and (iii) the respective officers, directors, partners, employees, representatives and agents of any Holder or any controlling person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, judgments, actions and expenses (including, without limitation, and as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing, settling, compromising, paying or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to any Indemnified Holder), joint or several, directly or indirectly caused by, related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (including the Rule 430B Information) or Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto), or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses are caused by an untrue statement or omission or alleged untrue statement or omission that is made in reliance upon and in conformity with information relating to any of the Holders furnished in writing to the Company by any of the Holders expressly for use therein. This indemnity agreement shall be in addition to any liability which the Company or any of the Guarantors may otherwise have. 13 In case any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to which indemnity may be sought against the Company or the Guarantors, such Indemnified Holder (or the Indemnified Holder controlled by such controlling person) shall promptly notify the Company and the Guarantors in writing; provided, however, that the failure to give such notice shall not relieve any of the Company or the Guarantors of its obligations pursuant to this Agreement to the extent the Company is not materially prejudiced as a proximate result of such omission. Such Indemnified Holder shall have the right to employ its own counsel in any such action and the fees and expenses of such counsel shall be paid, as incurred, by the Company and the Guarantors (regardless of whether it is ultimately determined that an Indemnified Holder is not entitled to indemnification hereunder). In case any such action is brought against any Indemnified Holder, and it notifies the Company and the Guarantors of the commencement thereof, the Company and the Guarantors will be entitled to participate therein, and to the extent that they may elect by written notice delivered to the Indemnified Holder promptly after receiving the aforesaid notice from such Indemnified Holder, to assume the defense thereof, with counsel satisfactory to such Indemnified Holder; provided, however, that if the defendants in any such action include both the Indemnified Holder and the Company and the Guarantors and the Indemnified Holder shall have reasonably concluded that there may be legal defenses available to it and/or other Indemnified Holders which are different from or additional to those available to the Company and the Guarantors, the Indemnified Holder or Holders shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Holder or Holders. Upon receipt of notice from the Company and the Guarantors to such Indemnified Holder of their election to assume the defense of such action and approval by the Indemnified Holder of counsel (which shall not be unreasonably withheld or delayed), the Company and the Guarantors will not be liable to such Indemnified Holder under this Section 8 for any legal or other expenses subsequently incurred by such Indemnified Holder in connection with the defense thereof unless (i) the Indemnified Holder shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the Company and the Guarantors shall not, in respect of the legal expenses of any Indemnified Holder in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate counsel (in addition to any local counsel), approved by the Company and the Guarantors, representing the Indemnified Holder or Holders under this paragraph (a) who are parties to such action), (ii) the Company and the Guarantors shall not have employed counsel reasonably satisfactory to the Indemnified Holder to represent the Indemnified Holder within a reasonable time after notice of commencement of the action or (iii) the Company and the Guarantors have authorized the employment of counsel for the Indemnified Holder at the expense of the Company and the Guarantors; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). The Company and the Guarantors shall be liable for any settlement of any such action or proceeding effected with the Company's and the Guarantors' prior written consent, which consent shall not be withheld unreasonably, and each of the Company and the Guarantors agrees to indemnify and hold harmless any Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any settlement of any such action effected with the written consent of the Company and the Guarantors. The Company and the Guarantors shall not, without the prior written consent of each Indemnified Holder, settle or compromise or consent to the entry of judgment in or otherwise seek to terminate any pending or threatened action, claim, litigation or proceeding in respect of which indemnification or contribution may be sought hereunder by any such Indemnified Holder (whether or not any Indemnified Holder is a party thereto), unless such settlement, compromise, consent or termination includes an unconditional release of such Indemnified Holder from all liability arising out of such action, claim, litigation or proceeding. (b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors and their respective directors and officers who sign a Registration Statement, and any Person controlling (within the meaning of Section 15 of the Securities 14 Act or Section 20 of the Exchange Act) the Company or any of the Guarantors, and the respective officers, directors, partners, employees, representatives and agents of each such Person, to the same extent as the foregoing indemnity from the Company and the Guarantors to each of the Indemnified Holders, but only with respect to claims and actions based on information relating to such Holder furnished in writing by such Holder expressly for use in any Registration Statement. In case any action or proceeding shall be brought against the Company, the Guarantors or their respective directors or officers or any such controlling person in respect of which indemnity may be sought against a Holder of Transfer Restricted Securities, such Holder shall have the rights and duties given the Company and the Guarantors, and the Company, the Guarantor, their respective directors and officers and such controlling person shall have the rights and duties given to each Holder by the preceding paragraph. (c) If the indemnification provided for in this Section 8 is unavailable to an indemnified party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Holders, on the other hand, from the Initial Placement (which in the case of the Company and the Guarantors shall be deemed to be equal to the total gross proceeds to the Company and the Guarantors from the Initial Placement), the amount of Additional Interest which did not become payable as a result of the filing of the Registration Statement resulting in such losses, claims, damages, liabilities, judgments actions or expenses, and such Registration Statement, or if such allocation is not permitted by applicable law, the relative fault of the Company and the Guarantors, on the one hand, and the Holders, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of the Company and the Guarantors on the one hand and of the Indemnified Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or any of the Guarantors, on the one hand, or the Indemnified Holders, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of Section 8(a) hereof, any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company, the Guarantors and each Holder of Transfer Restricted Securities agree that it would not be just and equitable if contribution pursuant to this Section 8(c) were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, none of the Holders (and its related Indemnified Holders) shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total discount received by such Holder with respect to the Initial Securities exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The Holders' 15 obligations to contribute pursuant to this Section 8(c) are several in proportion to the respective principal amount of Initial Securities held by each of the Holders hereunder and not joint. SECTION 9. Rule 144A. Each of the Company and the Guarantors hereby agrees with each Holder, for so long as any Transfer Restricted Securities remain outstanding, to use its commercially reasonable efforts to make available to any Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A under the Securities Act. SECTION 10. Participation in Underwritten Registrations. No Holder may participate in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements. SECTION 11. Selection of Underwriters. The Holders of Transfer Restricted Securities covered by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker(s) and managing underwriter(s) that will administer such offering will be selected by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included in such offering; provided, however, that such investment banker(s) and managing underwriter(s) must be reasonably satisfactory to the Company. SECTION 12. Miscellaneous. (a) Remedies. Each of the Company and the Guarantors hereby agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate. (b) No Inconsistent Agreements. Each of the Company and the Guarantors will not on or after the date of this Agreement enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Neither the Company nor any of the Guarantors has previously entered into any agreement that is still in effect granting any registration rights with respect to its securities to any Person, other than the resale and registration rights agreement dated the date hereof, among the Company, the guarantors named therein and the initial purchasers named therein relating to the Company's 4.125% convertible senior subordinated debentures due 2027. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company's or any of the Guarantors' securities under any agreement in effect on the date hereof. (c) Adjustments Affecting the Securities. The Company will not take any action, or permit any change to occur, with respect to the Securities that would materially and adversely affect the ability of the Holders to Consummate any Exchange Offer. (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given unless the Company has (i) in the case of Section 5 hereof and this Section 12(d)(i), obtained the written consent of Holders of all outstanding Transfer Restricted Securities and (ii) in the case of all other 16 provisions hereof, obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities (excluding any Transfer Restricted Securities held by the Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of Transfer Restricted Securities being tendered or registered; provided, however, that, with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder, the Company shall obtain the written consent of each such Initial Purchaser with respect to which such amendment, qualification, supplement, waiver, consent or departure is to be effective. (e) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery: (i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy to the Registrar under the Indenture; and (ii) if to the Company and the Guarantors: One Invacare Way Elyria, Ohio 44036 Phone: (440) 329-6000 Facsimile: (440) 329-6036 Attention: Dale C. LaPorte, Esq. General Counsel With a copy to: Calfee, Halter & Griswold LLP 1400 McDonald Investment Center 800 Superior Avenue Cleveland, Ohio 44114 Facsimile: (216) 241-0816 Attention: Douglas A. Neary All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture. (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including, without limitation, and without the need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided, however, that this Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the extent such successor or assign acquired Transfer Restricted Securities from such Holder. 17 (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF. (j) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. (k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Company with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 18 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. INVACARE CORPORATION, an Ohio corporation By: /s/ Gerald B. Blouch ------------------------- Name: Gerald B. Blouch Title: President and COO [Registration Rights Agreement Signature Page] 19 SUBSIDIARY GUARANTORS ADAPTIVE SWITCH LABORATORIES, INC. INVACARE FLORIDA CORPORATION INVACARE CREDIT CORPORATION THE AFTERMARKET GROUP, INC. THE HELIXX GROUP, INC. CHAMPION MANUFACTURING INC. HEALTHTECH PRODUCTS, INC. INVACARE CANADIAN HOLDINGS, INC. INVACARE INTERNATIONAL CORPORATION By: /s/ Gerald B. Blouch ----------------------------------- Name: Gerald B. Blouch Title: President [Registration Rights Agreement Signature Page] 20 KUSCHALL, INC. ALTIMATE MEDICAL, INC. INVACARE SUPPLY GROUP, INC. INVACARE HOLDINGS, LLC By: /s/ Gerald B. Blouch ---------------------------- Name: Gerald B. Blouch Title: President [Registration Rights Agreement Signature Page] 21 FREEDOM DESIGNS, INC. By: /s/ Gerald B. Blouch ----------------------------- Name: Gerald B. Blouch Title: President [Registration Rights Agreement Signature Page] 22 MEDBLOC, INC. GARDEN CITY MEDICAL INC. By: /s/ Bradford J. Patrick -------------------------------- Name: Bradford J. Patrick Title: Assistant Secretary [Registration Rights Agreement Signature Page] 23 INVACARE FLORIDA HOLDINGS, LLC By: /s/ Gerald B. Blouch --------------------------- Name: Gerald B. Blouch Title: President [Registration Rights Agreement Signature Page] 24 The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written: BANC OF AMERICA SECURITIES LLC KEYBANC CAPITAL MARKETS, A DIVISION OF MCDONALD INVESTMENTS INC. BMO CAPITAL MARKETS CORP. SUNTRUST CAPITAL MARKETS, INC. By: Banc of America Securities LLC By: /s/ Lex Maultsby ----------------------------- Name: Lex Maultsby Title: Managing Director [Registration Rights Agreement Signature Page] 25 EX-10.1 6 l24661aexv10w1.txt EX-10.1 Exhibit 10.1 [Published CUSIP Number: ____] ================================================================================ CREDIT AGREEMENT Dated as of February 12, 2007 among INVACARE CORPORATION and CERTAIN SUBSIDIARIES, as Borrowers, CERTAIN SUBSIDIARIES, as Guarantors, BANK OF AMERICA, N.A., BMO CAPITAL MARKETS FINANCING INC. and SUNTRUST BANK, as Co-Documentation Agents, KEYBANK NATIONAL ASSOCIATION, as Syndication Agent, NATIONAL CITY BANK, as Multicurrency Administrative Agent, Multicurrency Collateral Agent, Swing Line Lender and an L/C Issuer NATIONAL CITY BANK, CANADA BRANCH, as Canadian Administrative Agent and Canadian Collateral Agent, BANC OF AMERICA SECURITIES ASIA LIMITED, as Australian Administrative Agent and Australian Collateral Agent, and The Lenders Party Hereto BANC OF AMERICA SECURITIES LLC and KEYBANK NATIONAL ASSOCIATION, as Joint Lead Arrangers for the term loan facility NATIONAL CITY BANK and KEYBANK NATIONAL ASSOCIATION, as Joint Lead Arrangers for the revolving credit facility BANC OF AMERICA SECURITIES LLC, NATIONAL CITY BANK and KEYBANK NATIONAL ASSOCIATION, as Joint Book Managers ================================================================================ TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..................................1 1.01 Defined Terms....................................................1 1.02 Other Interpretive Provisions...................................57 1.03 Accounting Terms................................................58 1.04 Rounding........................................................58 1.05 Exchange Rates; Currency Equivalents............................59 1.06 Additional Foreign Currencies...................................59 1.07 Change of Currency..............................................62 1.08 Times of Day....................................................62 1.09 Letter of Credit Amounts........................................62 1.10 Dutch Terms.....................................................62 ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS............................63 2.01 The Loans.......................................................63 2.02 Borrowings, Conversions and Continuations of Loans..............67 2.03 Letters of Credit...............................................72 2.04 Swing Line Loans................................................87 2.05 Prepayments.....................................................91 2.06 Termination or Reduction of Commitments.........................95 2.07 Repayment of Loans..............................................96 2.08 Interest........................................................98 2.09 Fees............................................................99 2.10 Computation of Interest and Fees...............................100 2.11 Evidence of Debt...............................................101 2.12 Payments Generally; Administrative Agent's Clawback............102 2.13 Sharing of Payments by Lenders.................................104 2.14 Foreign Borrowers..............................................105 ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY........................106 3.01 Taxes..........................................................106 3.02 Illegality.....................................................115 3.03 Inability to Determine Rates...................................115 3.04 Increased Costs; Reserves on Eurocurrency Rate Loans and CDOR Rate Loans............................................116 3.05 Compensation for Losses........................................118 3.06 Mitigation Obligations.........................................119 3.07 Survival.......................................................119 3.08 Parallel Debt..................................................119 ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS......................120 4.01 Conditions of Initial Credit Extension.........................120 4.02 Conditions to all Credit Extensions............................126 ARTICLE V REPRESENTATIONS AND WARRANTIES..................................127 5.01 Existence, Qualification and Power.............................127 [Published CUSIP Number: ____] 5.02 Authorization; No Contravention................................127 5.03 Governmental Authorization; Other Consents.....................128 5.04 Binding Effect.................................................128 5.05 Financial Statements; No Material Adverse Effect; No Internal Control Event.........................................128 5.06 Litigation.....................................................129 5.07 No Default.....................................................129 5.08 Ownership of Property; Liens; Investments......................130 5.09 Environmental Compliance.......................................130 5.10 Insurance......................................................131 5.11 Taxes..........................................................132 5.12 ERISA Compliance...............................................132 5.13 Subsidiaries; Equity Interests; Loan Parties...................133 5.14 Margin Regulations; Investment Company Act.....................134 5.15 Disclosure.....................................................134 5.16 Compliance with Laws...........................................134 5.17 Intellectual Property; Licenses, Etc...........................135 5.18 Solvency.......................................................135 5.19 Casualty, Etc..................................................135 5.20 Labor Matters..................................................135 5.21 Collateral Documents...........................................135 5.22 Fraud and Abuse................................................136 5.23 Licensing and Accreditation....................................136 5.24 Other Regulatory Protection....................................137 5.25 Swiss Withholding Tax..........................................137 ARTICLE VI AFFIRMATIVE COVENANTS..........................................138 6.01 Financial Statements...........................................138 6.02 Certificates; Other Information................................139 6.03 Notices........................................................142 6.04 Payment of Obligations.........................................143 6.05 Preservation of Existence, Etc.................................144 6.06 Maintenance of Properties......................................144 6.07 Maintenance of Insurance.......................................144 6.08 Compliance with Laws...........................................145 6.09 Books and Records..............................................145 6.10 Inspection Rights..............................................145 6.11 Covenant to Guarantee Obligations and Give Security............146 6.12 Compliance with Environmental Laws.............................148 6.13 Preparation of Environmental Reports...........................148 6.14 Further Assurances.............................................149 6.15 Compliance with Terms of Leaseholds............................149 6.16 Lien Searches..................................................149 6.17 Material Contracts.............................................150 6.18 Designation as Senior Debt.....................................150 6.19 Maintenance of Debt Ratings....................................150 6.20 Post-Closing Covenants.........................................150 2 [Published CUSIP Number: ____] ARTICLE VII NEGATIVE COVENANTS............................................152 7.01 Liens..........................................................152 7.02 Indebtedness...................................................154 7.03 Investments....................................................156 7.04 Fundamental Changes............................................159 7.05 Dispositions...................................................160 7.06 Restricted Payments............................................161 7.07 Change in Nature of Business...................................162 7.08 Transactions with Affiliates...................................162 7.09 Restrictions with Respect to Intercorporate Transfers; Burdensome Agreements; Other Negative Pledges..................162 7.10 Use of Proceeds................................................163 7.11 Financial Covenants............................................163 7.12 Capital Expenditures...........................................164 7.13 Amendments of Organization Documents...........................164 7.14 Accounting Changes.............................................164 7.15 Prepayments, Etc. of Indebtedness..............................164 7.16 Amendment, Etc. of Material Contracts and Indebtedness.........165 7.17 Designation of Senior Debt.....................................165 7.18 Impairment of Security Interests...............................166 7.19 Foreign Operations.............................................166 7.20 Restrictions on Insurance Subsidiary, Receivables Subsidiary and Foreign Shell Subsidiaries......................166 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES...............................166 8.01 Events of Default..............................................166 8.02 Remedies upon Event of Default.................................170 8.03 Application of Funds...........................................171 ARTICLE IX ADMINISTRATIVE AGENT...........................................172 9.01 Appointment and Authority......................................172 9.02 Rights as a Lender.............................................173 9.03 Exculpatory Provisions.........................................173 9.04 Reliance by Administrative Agent...............................174 9.05 Delegation of Duties...........................................174 9.06 Resignation of Administrative Agent............................175 9.07 Non-Reliance on Administrative Agent and Other Lenders.........176 9.08 No Other Duties, Etc...........................................176 9.09 Administrative Agent May File Proofs of Claim..................176 9.10 Collateral and Guaranty Matters................................177 9.11 Canadian Collateral Agent......................................178 ARTICLE X GUARANTY........................................................179 10.01 The Guaranty...................................................179 10.02 Obligations Unconditional......................................181 10.03 Reinstatement..................................................182 10.04 Certain Waivers................................................183 10.05 Remedies.......................................................184 3 [Published CUSIP Number: ____] 10.06 Rights of Contribution.........................................184 10.07 Guaranty of Payment; Continuing Guarantee......................185 10.08 Foreign Guaranty Matters.......................................185 ARTICLE XI MISCELLANEOUS..................................................187 11.01 Amendments, Etc................................................187 11.02 Notices; Effectiveness; Electronic Communications..............189 11.03 No Waiver; Cumulative Remedies.................................192 11.04 Expenses; Indemnity; Damage Waiver.............................192 11.05 Payments Set Aside.............................................194 11.06 Successors and Assigns.........................................194 11.07 Treatment of Certain Information; Confidentiality..............203 11.08 Right of Setoff................................................204 11.09 Interest Rate Limitation.......................................205 11.10 Counterparts; Integration; Effectiveness.......................205 11.11 Survival of Representations and Warranties.....................205 11.12 Severability...................................................206 11.13 Replacement of Lenders.........................................206 11.14 Governing Law; Jurisdiction; Etc...............................207 11.15 Waiver of Jury Trial...........................................208 11.16 No Advisory or Fiduciary Responsibility........................208 11.17 USA Patriot Act Notice.........................................209 11.18 Judgment Currency..............................................209 11.19 Designation as Senior Debt.....................................210 11.20 Amounts on Deposit with Canadian Administrative Agent..........210 ARTICLE XII SPECIAL PROVISIONS APPLICABLE TO LENDERS UPON THE OCCURRENCE OF A SHARING EVENT..............................................210 12.01 Participations.................................................210 12.02 Multicurrency Administrative Agent's Determinations Binding....210 12.03 Participation Payments in U.S. Dollars.........................211 12.04 Delinquent Participation Payments..............................211 12.05 Settlement of Participation Payments...........................212 12.06 Participation Obligations Absolute.............................212 12.07 Increased Costs; Indemnities...................................212 4 [Published CUSIP Number: ____] SCHEDULES 1.01(a) Mandatory Cost Rate 1.01(b) Existing Letters of Credit 2.01 Commitments and Applicable Percentages 4.01(f) Mortgaged Properties 5.03 Certain Authorizations 5.08(b) Existing Liens 5.08(c) Owned Real Property 5.08(d)(i) Leased Real Property (Lessee) 5.08(d)(ii) Leased Real Property (Lessor) 5.08(e) Existing Investments 5.10 Insurance 5.13 Subsidiaries and Other Equity Investments; Loan Parties 5.17 Intellectual Property Matters 5.20 Labor Matters 7.02 Existing Indebtedness 7.09 Burdensome Agreements 11.02 Administrative Agents' Offices; Certain Addresses for Notices EXHIBITS Form of A Committed Loan Notice B Swing Line Loan Notice C-1 Term B Note C-2 Multicurrency Revolving Note C-3 Alternative Currency Note C-4 Canadian Revolving Note C-5 Australian Revolving Note D Compliance Certificate E Assignment and Assumption F Joinder Agreement G Mortgage CREDIT AGREEMENT This CREDIT AGREEMENT ("Agreement") is entered into as of FEBRUARY 12, 2007, among Invacare Corporation, an Ohio corporation (the "Company"), certain Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a "Foreign Borrower" and, together with the Company, the "Borrowers" and each, a "Borrower"), certain Subsidiaries of the Company from time to time party hereto as guarantors and each lender from time to time party hereto (collectively, the "Lenders" and individually, a "Lender"), National City Bank, as Multicurrency Administrative Agent, Multicurrency Collateral Agent, Swing Line Lender and an L/C Issuer, National City Bank, Canada Branch, as Canadian Administrative Agent and Canadian Collateral 5 [Published CUSIP Number: ____] Agent, and Banc of America Securities Asia Limited, as Australian Administrative Agent and Australian Collateral Agent. PRELIMINARY STATEMENTS: The Borrowers have requested that the Lenders provide a term B loan facility and a revolving credit facility, and the Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to issue Letters of Credit, in each case, on the terms and subject to the conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1.01 DEFINED TERMS. As used in this Agreement, the following terms shall have the meanings set forth below: "Accessible Borrowing Availability" shall mean, as of any date of determination, the amount that the Borrowers are able to borrow on such date under the Revolving Commitments without a Default or Event of Default occurring or existing after giving pro forma effect to such borrowing. "Administrative Agent" means the Multicurrency Administrative Agent, the Australian Administrative Agent and/or the Canadian Administrative Agent, as the context may require. "Administrative Agent's Office" means the Multicurrency Administrative Agent's Office, the Australian Administrative Agent's Office and/or the Canadian Administrative Agent's Office, as the context may require. "Administrative Questionnaire" means an Administrative Questionnaire in a form supplied by the Multicurrency Administrative Agent. "Affiliate" means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. "Aggregate Commitments" means the sum of (a) the Commitments of all the Lenders minus (b) the amount of the Foreign Currency Reserve (if any). "Agreement" means this Credit Agreement. 6 [Published CUSIP Number: ____] "Alternative Currency" means any currency (other than a Syndicated Currency, Canadian Dollars and Australian Dollars) (a) that the Company requests the Multicurrency Administrative Agent to include as a Foreign Currency hereunder and which is acceptable to one-hundred percent (100%) of the Alternative Currency Lenders that will make Alternative Currency Loans in such Foreign Currency and (b) with respect to which an Alternative Currency Addendum has been executed among the Company, a Foreign Borrower, one or more Alternative Currency Lenders and the Multicurrency Administrative Agent. "Alternative Currency Addendum" means a schedule and addendum entered into among the Company, a Foreign Borrower, one or more Alternative Currency Lenders and the Multicurrency Administrative Agent, in form and substance satisfactory to the Multicurrency Administrative Agent, the Company, such Foreign Borrower and such Alternative Currency Lender party thereto. "Alternative Currency Borrowing" means a borrowing consisting of simultaneous Alternative Currency Loans under a Alternative Currency Facility and having the same Interest Period made by each of the Alternative Currency Lenders under such Alternative Currency Facility pursuant to Section 2.01(e). "Alternative Currency Commitment" means, for each Alternative Currency Lender for each Alternative Currency, the obligation of such Alternative Currency Lender to make Alternative Currency Loans not exceeding the Dollar Equivalent set forth in the applicable Alternative Currency Addendum, as such amount may be modified from time to time pursuant to the terms of this Agreement and the applicable Alternative Currency Addendum. "Alternative Currency Facility" means all Alternative Currency Loans made under Alternative Currency Commitments provided under an Alternative Currency Addendum. "Alternative Currency Lender" means any Lender (including any Applicable Lending Installation) party to an Alternative Currency Addendum. "Alternative Currency Loan" means any Loan denominated in an Alternative Currency made by the Multicurrency Administrative Agent or one or more of the Alternative Currency Lenders to a Foreign Borrower pursuant to this Agreement and the applicable Alternative Currency Addendum. "Alternative Currency Note" means a promissory note made by the applicable Borrower in favor of an Alternative Currency Lender evidencing Alternative Currency Loans made by such Alternative Currency Lender to such Borrower, substantially in the form of Exhibit C-3. "Applicable Lending Installation" means, with respect to any Lender, any office(s), agency(ies), branch(es), Subsidiary(ies) or Affiliate(s) of such Lender selected by such Lender and notified to the Company and the Multicurrency Administrative Agent by such Lender from time to time and, with respect to the Multicurrency Administrative Agent, any office(s), agency(ies), branch(es), Subsidiary(ies) or Affiliate(s) of the Multicurrency Administrative 7 [Published CUSIP Number: ____] Agent selected by the Multicurrency Administrative Agent and notified to the Company from time to time. "Applicable Percentage" means (a) in respect of the Term B Facility, with respect to any Term B Lender at any time, the percentage (carried out to the tenth decimal place) of the Term B Facility represented by (i) on or prior to the Closing Date, such Term B Lender's Term B Commitment at such time and (ii) thereafter, the principal amount of such Term B Lender's Term B Loans at such time, (b) in respect of the Multicurrency Facility, with respect to any Multicurrency Revolving Lender at any time, the percentage (carried out to the tenth decimal place) of the Multicurrency Facility represented by such Multicurrency Revolving Lender's Multicurrency Revolving Commitment at such time, as such percentage may be adjusted from time to time in accordance with the terms of Section 2.01(e), (c) with respect to any Australian Revolving Lender at any time, the percentage (carried out to the tenth decimal place) of the Australian Facility represented by such Australian Revolving Lender's Australian Revolving Commitment at such time, as such percentage may be adjusted from time to time in accordance with the terms of Section 2.01(e), (d) with respect to any Canadian Revolving Lender at any time, the percentage (carried out to the tenth decimal place) of the Canadian Facility represented by such Canadian Revolving Lender's Canadian Revolving Commitment at such time, as such percentage may be adjusted from time to time in accordance with the terms of Section 2.01(e), and (e) in respect of each Alternative Currency Facility, with respect to any Alternative Currency Lender under such Alternative Currency Facility at any time, the percentage (carried out to the tenth decimal place) of the Alternative Currency Facility represented by such Alternative Currency Lender's Alternative Currency Commitment at such time, as such percentage may be adjusted from time to time in accordance with the terms of Section 2.01(e). If the commitment of each Revolving Lender to make Revolving Loans and the obligation of each L/C Issuer to make L/C Credit Extensions has been terminated pursuant to Section 8.02, or if the Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Applicable Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving effect to any subsequent assignments. If the commitment of each Alternative Currency Lender to make Alternative Currency Loans under an Alternative Currency Facility has been terminated pursuant to Section 8.02, or if the Alternative Currency Commitments with respect to such Alternative Currency Facility have expired, then the Applicable Percentage of each Alternative Currency Lender in respect of such Alternative Currency Facility shall be determined based on the Applicable Percentage of such Alternative Currency Lender in respect of such Alternative Currency Facility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. "Applicable Rate" means, (a) in respect of each Revolving Facility, each Alternative Currency Facility, the Letter of Credit Fees, each CDOR Rate Loan and the Facility Fee, the applicable percentage per annum set forth below determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Multicurrency Administrative Agent pursuant to Section 6.02(b); provided that from the Closing Date to the date on which the Multicurrency Administrative Agent receives a Compliance 8 [Published CUSIP Number: ____] Certificate pursuant to Section 6.02(b) for the fiscal quarter ending March 31, 2007, the Applicable Rate shall be set at Pricing Level 4:
Eurocurrency All In Drawn Facility Rate for Base Rate CDOR Rate Pricing Consolidated Leverage Fee (Letter of Eurocurrency Loan Level Ratio Credit Fees) Rate Loans - ---------------------------------------------------------------------------------------------------------------- 1 < 3.00:1.0 0.250% 1.25% 1.50% 0.25% 1.25% - 2 > 3.00:1.0 but < 3.75:1.0 0.375% 1.375% 1.75% 0.375% 1.375% - 3 > 3.75:1.0 but < 4.50:1.0 0.375% 1.625% 2.00% 0.625% 1.625% - 4 > 4.50:1.0 but < 5.25:1.0 0.500% 1.75% 2.25% 0.75% 1.75% - 5 > 5.25:1.0 0.500% 2.00% 2.50% 1.00% 2.00%
and (b) in respect of the Term B Facility, 1.25% per annum for Base Rate Loans and 2.25% per annum for Eurocurrency Rate Loans. Notwithstanding the foregoing, in the event that any financial information or certification provided to the Multicurrency Administrative Agent in the Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Rate for any period (an "Applicable Period") than the Applicable Rate applied for such Applicable Period, then (i) the Company shall immediately deliver to the Multicurrency Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Rate shall be determined based on such corrected Compliance Certificate and the Pricing Level that would have applied for such Applicable Period, and (iii) the Company shall immediately pay to the Multicurrency Administrative Agent the accrued additional interest owing as a result of such increased Applicable Rate for such Applicable Period. It is acknowledged and agreed that nothing contained herein shall limit the rights of each Administrative Agent and Lenders under Sections 2.08(b) and 8.01. "Applicable Revolving Credit Percentage" means with respect to any Revolving Lender at any time, such Revolving Lender's Applicable Percentage in respect of the Revolving Facility at such time. "Applicable Time" means, with respect to any borrowings and payments in any Foreign Currency, the local time in the place of settlement for such Foreign Currency as may be determined by the Multicurrency Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment. "Appropriate Lender" means, at any time, (a) with respect to the Term B Facility, the Revolving Facility or an Alternative Currency Facility, a Lender that has a Commitment with respect to such Facility or holds a Term B Loan, a Revolving Loan or an Alternative Currency Loan, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the applicable L/C Issuers and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Lenders. 9 [Published CUSIP Number: ____] "Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. "Arrangers" means Banc of America Securities LLC, National City Bank and KeyBank National Association, in their capacities as joint lead arrangers and joint book managers. "Assignee Group" means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor. "Assignment and Assumption" means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Multicurrency Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Multicurrency Administrative Agent. "Attributable Indebtedness" means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease, (c) in respect of any securitization transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, as determined by the Multicurrency Administrative Agent in its reasonable judgment, (d) in respect of any Sale and Leaseback Transaction, the present value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the lessee for rental payments during the term of such lease and (e) all Synthetic Debt of such Person. "Audited Financial Statements" means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31, 2005, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto. "Australian Administrative Agent" means Banc of America Securities Asia Limited, in its capacity as Australian administrative agent under any of the Loan Documents, or any successor Australian administrative agent. "Australian Administrative Agent's Office" means the Australian Administrative Agent's Australian address and, as appropriate, account as set forth on Schedule 11.02, or such other Australian address or account as the Australian Administrative Agent may from time to time notify to the Borrowers and the Australian Revolving Lenders. "Australian Availability Period" means, the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Australian Facility as 10 [Published CUSIP Number: ____] provided herein, and (c) the date of termination of the commitment of each Australian Revolving Lender to make Australian Revolving Loans as provided herein. "Australian Borrower" means Invacare Australia Pty Limited, an Australian corporation and wholly owned Subsidiary of the Company. "Australian Collateral" means a collective reference to the collateral which is identified in, and at any time will be covered by, the Australian Collateral Documents. "Australian Collateral Agent" means Banc of America Securities Asia Limited, in its capacity as Australian collateral agent under any of the Loan Documents, or any successor Australian collateral agent. "Australian Collateral Documents" means a collective reference to, as amended, modified, supplemented, or restated from time to time, (a) the Fixed and Floating Charge, dated as of the Closing Date, by and among the Australian Collateral Agent and Australian Healthcare Equipment Pty. Limited, (b) the Fixed and Floating Charge, dated as of the Closing Date, by and among the Australian Collateral Agent and Home Health Equipment Pty Limited, (c) the Fixed and Floating Charge, dated as of the Closing Date, by and among the Australian Collateral Agent and Adelaid Scooters & Wheelchairs Pty Ltd., (d) the Fixed and Floating Charge, dated as of the Closing Date, by and among the Australian Collateral Agent and Morris Surgical Pty. Ltd. and (e) such other documents executed and delivered in connection with the attachment and perfection of the security interests granted to secure the Australian Obligations. "Australian Dollar" and "A$" mean the lawful currency of Australia. "Australian Facility" means, at any time, the aggregate amount of the Australian Revolving Lenders' Australian Revolving Commitments at such time, which amount shall not exceed $20,000,000 (as such amount may be modified from time to time pursuant to Section 2.01(f)). "Australian Facility Guarantors" means (a) the Company, (b) the Australian Guarantors, (c) the Multicurrency Foreign Guarantors and (d) each Person who after the Closing Date becomes an Australian Facility Guarantor pursuant to a Joinder Agreement or other documentation in form and substance reasonably acceptable to the Australian Administrative Agent, in each case together with their respective successors and permitted assigns. "Australian Guarantors" means, as of any date of determination, the Subsidiaries of the Company organized in Australia that have provided Guarantees of the Obligations of the Australian Borrower as of such date. "Australian Loan Documents" means this Agreement, each Australian Revolving Note, the Australian Collateral Documents and the Fee Letter. "Australian Loan Parties" means the collective reference to the Australian Borrower and each Australian Guarantor and "Australian Loan Party" means any one of them. 11 "Australian Mortgages" means the mortgages or like instruments given by the Australian Loan Parties to the Australian Collateral Agent to secure the Australian Obligations, as such instruments may be amended or modified from time to time. "Australian Obligations" means all advances to, and debts, liabilities, obligations, covenants and duties of, any Australian Loan Party arising under any Australian Loan Document (but excluding any obligations of any Domestic Loan Party or Canadian Loan Party under this Agreement, other than in their capacities as Australian Guarantors of the Australian Obligations) or otherwise with respect to any Australian Revolving Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Australian Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing shall also include any Swap Contract between any Australian Loan Party and any Australian Revolving Lender or Affiliate of an Australian Revolving Lender and all obligations under any Cash Management Agreement between any Australian Loan Party and any Australian Revolving Lender or an Affiliate of an Australian Revolving Lender. "Australian Revolving Borrowing" means a borrowing consisting of simultaneous Australian Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period, made by each of the Australian Revolving Lenders pursuant to Section 2.01(c). "Australian Revolving Commitment" means, as to each Australian Revolving Lender, its obligation to make Australian Revolving Loans to the Australian Borrower and the Company pursuant to Section 2.01(c) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Australian Revolving Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Australian Revolving Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. "Australian Revolving Lenders" means, at any time, any Lender (together with its Related U.S. Lender, if applicable) that has an Australian Revolving Commitment. The Australian Revolving Lenders (including the name of any Related U.S. Lender, if applicable, of any such Australian Revolving Lender) as of the Closing Date are identified on Schedule 2.01. "Australian Revolving Loan" has the meaning specified in Section 2.01(c). "Australian Revolving Notes" means a promissory note in the form of Exhibit C-5. "Australian Subsidiary" means any Subsidiary that is organized under the laws of Australia or any province thereof. 12 [Published CUSIP Number: ____] "Availability Period" means in respect of any Revolving Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date for such Revolving Facility, (ii) the date of termination of the Revolving Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Revolving Lender to make Revolving Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02. "Bank Bill Rate" means, for any Interest Period, (a) the average bid rate displayed on or about 10:30 a.m. (Sydney time) on the first day of such period on the Reuters screen BBSY page for a term equivalent to such period or (b) if (i) for any reason the bid rate is not displayed for a term equivalent to such period or (ii) the basis on which the bid rate is displayed is changed and in the opinion of the Australian Administrative Agent it ceases to reflect the Australian Lenders' cost of funding to the same extent as at the date of this Agreement, then the Bank Bill Rate will be the rate determined by the Australian Administrative Agent at or about such time on such date. The buying rates must be for bills of exchange accepted by a leading Australian bank and which have a term equivalent to such period. If there are no buying rates, the rate for each Australian Lender will be the rate notified by each such Australian Lender to the Australian Administrative Agent to be such Australian Lender's cost of funding its participation in the relevant Australian Revolving Loan for such period. Rates will be expressed as a yield percent per annum to maturity, and if necessary will be rounded up to the nearest fourth decimal place. "Bankers' Acceptance" means a bill of exchange subject to the Bills of Exchange Act (Canada) or a depository bill subject to the Depository Bills and Notes Act (Canada) and denominated in Canadian Dollars. "Base Rate" means (a) in the case of Revolving Loans denominated in U.S. Dollars and the Term B Loan, for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the U.S. Prime Rate; (b) in the case of Canadian Revolving Loans denominated in U.S. Dollars, for any day a fluctuating rate per annum equal to the higher of (i) the rate which the Canadian Administrative Agent in Toronto, Ontario announces from time to time as the reference rate of interest for loans in U.S. Dollars to its Canadian borrowers; and (ii) the Federal Funds Rate plus 1/2 of 1%; and (c) in the case of Canadian Revolving Loans denominated in Canadian Dollars, for any day a fluctuating rate per annum equal to the higher of (i) the one month CDOR Rate plus 1/2 of 1% and (ii) the Canadian Prime Rate. "Base Rate Loan" means a Revolving Loan or a Term B Loan that bears interest based on the Base Rate. "Beneficial Owner" has the meaning set forth in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 and shall include a person or group that is deemed to have 13 [Published CUSIP Number: ____] "beneficial ownership" of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time. "Borrower" and "Borrowers" each has the meaning specified in the introductory paragraph hereto. "Borrowing" means a Revolving Borrowing, an Alternative Currency Borrowing, a Swing Line Borrowing or a Term B Borrowing, as the context may require. "Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Multicurrency Administrative Agent's Office with respect to Obligations denominated in U.S. Dollars is located and: (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in U.S. Dollars, any fundings, disbursements, settlements and payments in U.S. Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in U.S. Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in U.S. Dollars are conducted by and between banks in the London interbank eurodollar market; (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day; (c) if such day relates to any interest rate settings as to a Canadian Revolving Loan, any fundings, disbursements, settlements and payments in Canadian Dollars or U.S. Dollars in respect of any such Canadian Revolving Loan, or any other dealings in U.S. Dollars or Canadian Dollars to be carried out pursuant to this Agreement in respect of any such Canadian Revolving Loan, means (i) with respect to a Canadian Revolving Loan denominated in Canadian Dollars, any such day on which banks are open for business in Toronto, Canada and Montreal, Canada and (ii) with respect to a Eurocurrency Rate Loan denominated U.S. Dollars, any such day on which dealings in deposits in U.S. Dollars are conducted by and between banks in the London interbank eurodollar market; (d) if such day relates to any interest rate settings as to an Australian Revolving Loan, any fundings, disbursements, settlements and payments in Australian Dollars or U.S. Dollars in respect of any such Australian Revolving Loan, or any other dealings in U.S. Dollars or Australian Dollars to be carried out pursuant to this Agreement in respect of any such Australian Revolving Loan, means any such day on which banks are open for business in Hong Kong and Sydney, Australia; (e) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than U.S. Dollars or Euro, means any such day on 14 [Published CUSIP Number: ____] which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and (f) if such day relates to any fundings, disbursements, settlements and payments in a currency other than U.S. Dollars or Euro in respect of a Eurocurrency Rate Loan or Base Rate Loan denominated in a currency other than U.S. Dollars or Euro, or any other dealings in any currency other than U.S. Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan or Base Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency. "Canadian Administrative Agent" means National City Bank, Canada Branch, in its capacity as Canadian administrative agent under any of the Loan Documents, or any successor Canadian administrative agent. "Canadian Administrative Agent's Office" means the Canadian Administrative Agent's Canadian address and, as appropriate, account as set forth on Schedule 11.02, or such other Canadian address or account as the Canadian Administrative Agent may from time to time notify to the Borrowers and the Canadian Revolving Lenders. "Canadian Availability Period" means, the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Canadian Facility as provided herein, and (c) the date of termination of the commitment of each Canadian Revolving Lender to make Canadian Revolving Loans as provided herein. "Canadian Borrower" means Carroll Healthcare Inc., an Ontario corporation and wholly owned Subsidiary of the Company. "Canadian Collateral" means a collective reference to the collateral which is identified in, and at any time will be covered by, the Canadian Collateral Documents. "Canadian Collateral Agent" means National City Bank, Canada Branch, in its capacity as Canadian collateral agent under any of the Loan Documents, or any successor Canadian collateral agent. "Canadian Collateral Documents" means a collective reference to, as amended, modified, supplemented or restated from time to time, (a) the Canadian Security Agreement, (b) the Canadian Pledge Agreement, (c) the Canadian Mortgages, (d) any Deed of Hypothec, (e) any Quebec Bond Pledge and (f) such other documents executed and delivered in connection with the attachment and perfection of the security interests granted to secure the Canadian Obligations. "Canadian Dollar" and "CAN$" mean the lawful currency of Canada. 15 "Canadian Facility" means, at any time, the aggregate amount of the Canadian Revolving Lenders' Canadian Revolving Commitments at such time, which amount shall not exceed $50,000,000 (as such amount may be modified from time to time pursuant to Section 2.01(f)). "Canadian Facility Guarantors" means (a) the Company, (b) the Canadian Guarantors, (c) the Multicurrency Foreign Guarantors organized in Canada and (d) each Person who after the Closing Date becomes a Canadian Facility Guarantor pursuant to a Joinder Agreement or other documentation in form and substance reasonably acceptable to the Canadian Administrative Agent, in each case together with their respective successors and permitted assigns. "Canadian Guarantors" means, as of any date of determination, the Subsidiaries of the Company organized in Canada that have provided Guarantees of the Obligations of the Canadian Borrower as of such date. "Canadian L/C Advance" means, with respect to each Canadian Revolving Lender, such Canadian Lender's funding of its participation in any Canadian L/C Borrowing in accordance with its Applicable Revolving Credit Percentage. All Canadian L/C Advances shall be denominated in Canadian Dollars. "Canadian L/C Borrowing" means an extension of credit resulting from a drawing under any Canadian Letter of Credit which has not been reimbursed on the date when made or refinanced as a Canadian Revolving Borrowing. All Canadian L/C Borrowings shall be denominated in Canadian Dollars. "Canadian L/C Credit Extension" means, with respect to any Canadian Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof. "Canadian L/C Issuer" means National City Bank, Canada Branch. "Canadian L/C Obligations" means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Canadian Letters of Credit plus the aggregate of all Canadian Unreimbursed Amounts, including all Canadian L/C Borrowings. For purposes of computing the amount available to be drawn under any Canadian Letter of Credit, the amount of such Canadian Letter of Credit shall be determined in accordance with Section 1.09. For all purposes of this Agreement, if on any date of determination a Canadian Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Canadian Letter of Credit shall be deemed to be "outstanding" in the amount so remaining available to be drawn. "Canadian Letter of Credit" means any letter of credit issued by the Canadian L/C Issuer hereunder. A Canadian Letter of Credit may be a commercial letter of credit or a standby letter of credit. Canadian Letters of Credit shall be issued in Canadian Dollars. "Canadian Letter of Credit Fee" has the meaning specified in Section 2.03(i). 16 [Published CUSIP Number: ____] "Canadian Letter of Credit Sublimit" means an amount equal to $5,000,000. The Canadian Letter of Credit Sublimit is part of, and not in addition to, the Canadian Facility. "Canadian Loan Documents" means this Agreement, each Canadian Revolving Note, the Canadian Collateral Documents and the Fee Letter. "Canadian Loan Parties" means the collective reference to the Canadian Borrower and each Canadian Guarantor and "Canadian Loan Party" means any one of them. "Canadian Mortgages" means the mortgages or like instruments given by the Canadian Loan Parties to the Canadian Collateral Agent to secure the Canadian Obligations, as such instruments may be amended or modified from time to time. "Canadian Obligations" means all advances to, and debts, liabilities, obligations, covenants and duties of, any Canadian Loan Party arising under any Canadian Loan Document or otherwise with respect to any Canadian Revolving Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Canadian Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing shall also include any Secured Hedge Agreement and any Secured Cash Management Agreement to which a Canadian Loan Party is a party thereto. "Canadian Pledge Agreement" means the pledge agreement dated as of the date hereof executed by the Canadian Loan Parties in favor of the Canadian Collateral Agent to secure the Canadian Obligations. "Canadian Prime Rate" means the rate of interest in effect for such day as publicly announced from time to time by the Canadian Administrative Agent as its "prime rate." Such "prime rate" is a rate set by the Canadian Administrative Agent based upon various factors including the Canadian Administrative Agent's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such "prime rate" announced by the Canadian Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change. "Canadian Revolving Borrowing" means a borrowing consisting of simultaneous Canadian Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period, made by each of the Canadian Revolving Lenders pursuant to Section 2.01(d). "Canadian Revolving Commitment" means, as to each Canadian Revolving Lender, its obligation to make Canadian Revolving Loans to the Canadian Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Canadian Revolving Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Canadian Revolving Lender becomes a party hereto, as 17 applicable, as such amount may be adjusted from time to time in accordance with this Agreement. "Canadian Revolving Lenders" means, at any time, any Lender that has a Canadian Revolving Commitment. The Canadian Revolving Lenders as of the Closing Date are identified on Schedule 2.01. "Canadian Revolving Loan" has the meaning specified in Section 2.01(d). For the avoidance of doubt, it is agreed that the term "Canadian Revolving Loan" includes CDOR Rate Loans. "Canadian Revolving Notes" means a promissory note in the form of Exhibit C-4. "Canadian Secured Party" has the meaning specified in Section 9.11. "Canadian Security Agreement" means the security agreement dated as of the date hereof executed by the Canadian Loan Parties in favor of the Canadian Collateral Agent to secure the Canadian Obligations. "Canadian Subsidiary" means any Subsidiary that is organized under the laws of Canada or any province thereof. "Canadian Tax Act" means the Income Tax Act (Canada), as amended. "Canadian Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i)(B). "Capex Carryover Amount" has the meaning specified in Section 7.12. "Capital Expenditures" means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations) that is treated as a capital expenditure in accordance with GAAP. "Capitalized Leases" means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases. "Cash Collateralize" has the meaning specified in Section 2.03(g). "Cash Equivalents" means any of the following types of Investments, to the extent owned by the Company or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents and other Liens permitted hereunder): (a) U.S. Dollars or such local currencies held from time to time in the ordinary course of business; 18 (b) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof; (c) time deposits with, or insured certificates of deposit or Bankers' Acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $500,000,000 and whose senior unsecured debt is rated at least "Prime-2" (or the then equivalent grade) by Moody's or at least "A-2" (or the then equivalent grade) by S&P, in each case with maturities of not more than 90 days from the date of acquisition thereof; (d) commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least "Prime-1" (or the then equivalent grade) by Moody's or at least "A-1" (or the then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof; (e) Investments, classified in accordance with GAAP as current assets of the Company or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody's or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition; (f) Investments in repurchase agreements maturing within one year from the date of issuance thereof entered into with a bank or trust company of the type described in clause (b) above; and (g) Investments in tax-exempt floating rate optional tender bonds backed by a letter of credit issued by a bank or trust company of the type described in clause (b) above. "Cash Management Agreement" means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements. "Cash Management Bank" means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement. 19 [Published CUSIP Number: ____] "CDOR Period" means a period of 1, 2, 3 or 6 months or such other period as the Canadian Administrative Agent may agree, in each case, commencing on a Business Day selected by the Canadian Borrower in its irrevocable Committed Loan Notice with respect to a CDOR Rate Loan delivered to Multicurrency Administrative Agent in accordance with Section 2.02(d), provided that the foregoing provision relating to CDOR Periods is subject to the following: (a) any CDOR Period that would otherwise extend beyond the Maturity Date for the Revolving Facility shall end on such date; (b) the Canadian Borrower shall select CDOR Periods so as not to require a payment or prepayment of a CDOR Rate Loan pursuant to Section 2.05 during a CDOR Period for such CDOR Rate Loan; (c) the Canadian Borrower shall select CDOR Periods so there shall be no more than five (5) separate CDOR Rate Loans in existence at any one time; and (d) if any CDOR Period would otherwise end on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. "CDOR Rate" means, in the case of a CDOR Rate Loans, for any day, the rate per annum (rounded upwards, if necessary, to the nearest whole multiple of 1/100 of 1%) which is the rate determined as being the arithmetic average of the annual yield rates applicable to Canadian Dollar Bankers' Acceptances having identical issue and a comparable maturity date such CDOR Rate Loan displayed and identified as such on the Reuters Screen CDOR Page at approximately 10:00 a.m. on such day (as adjusted by the Canadian Administrative Agent after 10:00 a.m. (Toronto time) to reflect any error in any posted rate or in the posted average per annum rate), or if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Canadian Administrative Agent after 10:00 a.m. (Toronto time) to reflect any error in any posted rate or in the posted average per annual rate). If such rate does not appear on the Reuters Screen CDOR Page as contemplated above, then the CDOR Rate on any day shall be calculated as the arithmetic average of the discount rates having comparable maturity dates as such CDOR Rate Loan as quoted by any two of the Schedule I Lenders chosen by the Canadian Administrative Agent in its sole discretion, as of 10:00 a.m. (Toronto time) on the day, or if the day is not a Business Day, then on the immediately preceding Business Day. If less than two Schedule I Lenders quote the aforementioned rate, the CDOR Rate shall be the rate quoted by the Canadian Administrative Agent. "CDOR Rate Loan" means (i) with respect to Canadian Revolving Loans made by a Schedule I Lender, a Canadian Revolving Loan that bears interest based on the CDOR Rate and (ii) with respect to Canadian Revolving Loans made by any Canadian Revolving Lender other than a Schedule I Lender, a Canadian Revolving Loan that bears interest based on the CDOR Rate plus 0.05 per annum. 20 [Published CUSIP Number: ____] "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980. "CERCLIS" means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency. "CFC" means a Person that is a controlled foreign corporation under Section 957 of the Code. "Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline, published practice, concession or directive (whether or not having the force of law) by any Governmental Authority. "Change of Control" means an event or series of events by which: (a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the Beneficial Owner, directly or indirectly, of 35% or more of voting power in the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such "person" or "group" has the right to acquire pursuant to any option right); or (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or 21 [Published CUSIP Number: ____] (c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Company, or control over the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any option right) representing 35% or more of the combined voting power of such securities; or (d) a "change of control" or any comparable term under, and as defined in, the Senior Note Documents, the Convertible Note Documents or other significant Indebtedness of the Company or any other Loan Party shall have occurred; or (e) the Company shall fail to own and control, directly or indirectly, 100% of the outstanding capital stock of the other Borrowers. "Closing Date" means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01. "CMS" means the Centers for Medicare and Medicaid Services of HHS, any successor thereof and any predecessor thereof, including the Health Care Financing Administration. "Code" means the Internal Revenue Code of 1986. "Collateral" means all of the "Collateral" and "Mortgaged Property" referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Collateral Agent. "Collateral Agent" means the Multicurrency Collateral Agent, the Australian Collateral Agent and/or the Canadian Collateral Agent, as appropriate. "Collateral Documents" means a collective reference to the Australian Collateral Documents, the Canadian Collateral Documents, the English Collateral Documents, the Danish Collateral Documents, the Swiss Collateral Documents, the Dutch Collateral Documents, the U.S. Collateral Documents and such other documents executed and delivered in connection with the attachment and perfection of the security interests granted to secure the Obligations. "Commitment" means a Term B Commitment, a Revolving Commitment or an Alternative Currency Commitment, as the context may require. "Committed Loan Notice" means a notice of (a) a Term B Borrowing, (b) a Revolving Borrowing, (c) an Alternative Currency Borrowing, (d) a conversion of Loans from one Type to the other, or (e) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A. 22 [Published CUSIP Number: ____] "Company" has the meaning specified in the introductory paragraph hereto. "Compliance Certificate" means a certificate substantially in the form of Exhibit D. "Consolidated Current Assets" means, as at any date of determination, the total assets of the Company and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding Cash and Cash Equivalents. "Consolidated Current Liabilities" means, as at any date of determination, the total liabilities of the Company and its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long term debt. "Consolidated EBITDA" means, at any date of determination, an amount equal to (a) Consolidated Net Income of the Company and its Subsidiaries on a consolidated basis for the most recently completed four fiscal quarters of the Company plus (b) the following (without duplication) to the extent deducted in calculating such Consolidated Net Income (and excluding any item that is excluded in determining Consolidated Net Income pursuant to the definition thereof): (i) Consolidated Interest Charges, (ii) the provision for federal, state, local and foreign income taxes payable, (iii) depreciation and amortization expense (including, without limitation, the amortization of debt issuance costs) and bank or lending fees classified as selling, general and administrative expenses, (iv) the rehab reimbursement reserve recorded as of December 31, 2006 in an aggregate amount not to exceed $27,000,000, (v) the non-cash write-down of goodwill and general intangibles during the fiscal quarter ended December 31, 2006, (vi) non-cash compensation charges or other non-cash expenses or charges arising from the grant of or issuance of stock, stock options or other equity-based awards to the directors, officers and employees of the Company and its Subsidiaries, (vii) make-whole payments with respect to the repayment on the Closing Date of the privately placed notes of the Company and the write-off of bank fees associated with Indebtedness issued prior to January 1, 2007, collectively in an aggregate amount not to exceed $15,000,000, (viii) cash charges relating to cost savings initiatives implemented during the Company's fiscal years 2006, 2007, 2008 and 2009 in an amount not to exceed $17,000,000 in 2006, $18,000,000 in 2007, $10,000,000 in 2008 and $10,000,000 in 2009 and (ix) other non-recurring expenses and losses reducing such Consolidated Net Income which do not represent a cash item in such period or any future period (in each case of or by the Company and its Subsidiaries for the most recently completed four fiscal quarters of the Company), and minus (c) to the extent included in calculating such Consolidated Net Income: (i) federal, state, local and foreign income tax credits and (ii) all non-recurring non-cash items increasing Consolidated Net Income (in each case of or by the Company and its Subsidiaries for the most recently completed four fiscal quarters of the Company). "Consolidated Fixed Charge Coverage Ratio" means, at any date of determination, the ratio of (a) (i) Consolidated EBITDA, plus (ii) rent and lease expense under leases of real, personal or mixed property, less (iii) the aggregate amount of all Capital Expenditures to (b) the sum of (i) Consolidated Interest Charges, (ii) the aggregate principal amount of all regularly scheduled principal payments or redemptions or similar acquisitions for value of outstanding 23 [Published CUSIP Number: ____] debt for borrowed money, but excluding any such payments to the extent refinanced through the incurrence of additional Indebtedness otherwise expressly permitted under Section 7.02, (iii) rent and lease expense under leases of real, personal or mixed property, (iv) the aggregate amount of all Restricted Payments and (v) the aggregate amount of federal, state, local and foreign income taxes paid in cash, in each case of or by the Company and its Subsidiaries for the most recently completed four fiscal quarters of the Company. "Consolidated Funded Indebtedness" means, as of any date of determination, for the Company and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under letters of credit (including standby and commercial), Bankers' Acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) all Attributable Indebtedness, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Company or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Company or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Company or such Subsidiary; provided that Consolidated Funded Indebtedness shall not include recourse obligations of the Company and its Subsidiaries with respect to any Vendor Financing. "Consolidated Interest Charges" means the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest paid or payable with respect to discontinued operations and (c) the portion of rent expense under Capitalized Leases that is treated as interest in accordance with GAAP, in each case of or by the Company and its Subsidiaries on a consolidated basis for the most recently completed four fiscal quarters of the Company; provided that: (a) for purposes of determining Consolidated Interest Charges for the fiscal quarter ended March 31, 2007, Consolidated Interest Charges shall equal the Consolidated Interest Charges for such fiscal quarter multiplied by four; (b) for purposes determining Consolidated Interest Charges for the fiscal quarter ended June 30, 2007, Consolidated Interest Charges shall equal the Consolidated Interest Charges for the two fiscal quarters then ended multiplied by two; and (c) for purposes of determining Consolidated Interest Charges for the fiscal quarter ended September 30, 2007, Consolidated Interest Charges shall equal the Consolidated Interest Charges for the three fiscal quarters then ended multiplied by 4/3. "Consolidated Interest Coverage Ratio" means, as of any date of determination, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Charges. "Consolidated Leverage Ratio" means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA. 24 [Published CUSIP Number: ____] "Consolidated Net Income" means the net income (or loss) of the Company and its Subsidiaries on a consolidated basis for the most recently completed four fiscal quarters of the Company as determined in accordance with GAAP, adjusted, to the extent included in calculating such net income (or loss), by excluding, without duplication, (1) all extraordinary gains or losses (less all fees and expenses relating thereto) net of taxes, (2) the portion of net income (or loss) of the Company and its Subsidiaries on a consolidated basis allocable to minority interests in unconsolidated Persons to the extent that cash dividends or distributions have not actually been received by the Company or one of its Subsidiaries, (3) any gain or loss, net of taxes, realized upon the termination of any employee pension benefit plan, (4) gains or losses (less all fees and expenses relating thereto), net of taxes, in respect of dispositions of assets other than in the ordinary course of business, (5) the net income of any Subsidiary to the extent that the declaration of dividends or similar distributions by that Subsidiary of that income is not at the time permitted, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary or its equityholders, (6) any impairment charge or write-down of non-current assets, in each case pursuant to GAAP, (7) any non-cash expenses or charges resulting from stock, stock option or other equity-based awards, (8) any cumulative effect of a change in accounting principles, (9) all deferred financing costs written off, and premiums paid, in connection with any early extinguishment of Indebtedness, and (10) any non-cash restructuring charges. "Consolidated Total Assets" means all property and assets of the Company and its Subsidiaries on a consolidated basis as set forth in the most recent financial statements of the Company delivered pursuant to Sections 4.01(c), 6.01(a) and 6.01(b). "Consolidated Total Revenues" means, for any period of determination, the aggregate revenue of the Company and its Subsidiaries for such period. "Consolidated Working Capital" means, as of any date of determination, the sum of Consolidated Current Assets minus Consolidated Current Liabilities as of such date. 25 [Published CUSIP Number: ____] "Consolidated Working Capital Adjustment" means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the end of such period exceeds (or is less than) Consolidated Working Capital as of the beginning of such period. "Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlling" and "Controlled" have meanings correlative thereto. "Convertible Notes" means the 4.125% unsecured senior subordinated convertible debentures of the Company due 2027 in an aggregate principal amount of $125,000,000, along with an overallotment option of up to an additional $10,000,000 of unsecured senior subordinated convertible debentures, issued and sold on the Closing DATE pursuant to the Convertible Note Documents. "Convertible Note Documents" means (a) the Indenture dated as of the Closing Date among the Company, the Guarantors party thereto and Wells Fargo Bank, N.A., as trustee, (b) the Convertible Notes and (c) all other agreements, instruments and other documents pursuant to which the Convertible Notes have been or will be issued or otherwise setting forth the terms of the Convertible Notes or any refinancing, refunding, renewal or extension thereof permitted by Section 7.02(e). "Credit Extension" means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. "Custodian" has the meaning specified in Section 9.11. "Customer Lease" means a lease by the Company or any of its Subsidiaries of product to a customer for the purpose of financing the purchase thereof by such customer. "Danish Borrower" means Scandinavian Mobility International AS, a Danish corporation and wholly owned Subsidiary of the Company. "Danish Collateral Documents" means a collective reference to, as amended, modified, supplemented, or restated from time to time, (a) Share Pledge Agreement, dated as of the Closing Date, relating to the shares in Scandinavian Mobility International ApS, by and among Invacare Holdings Two B.V., as pledgor, the Secured Creditors (as defined therein) and the Collateral Agent, (b) Share Pledge Agreement, dated as of the Closing Date, relating to the shares in Invacare A/S, by and among Scandinavian Mobility International ApS, as pledgor, the Secured Creditors (as defined therein) and the Collateral Agent, (c) Share Pledge Agreement, dated as of 26 [Published CUSIP Number: ____] the Closing Date, relating to the shares in Invacare EC-Hong A/S, by and among Scandinavian Mobility International ApS, as pledgor, the Secured Creditors (as defined therein) and the Collateral Agent, and (d) such other documents executed and delivered in connection with the attachment and perfection of the security interests granted to secure the Foreign Obligations. "Debt Rating" means, as of any date of determination, the rating as determined by either S&P or Moody's of the Company's non-credit-enhanced, senior unsecured long-term debt. "Debtor Relief Laws" means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally. "Deed of Hypothec" means any deed of hypothec governed by Quebec law and granted by any Canadian Loan Party to the Fonde de pouvoir to secure the Canadian Obligations. "Default" means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. "Default Rate" means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that (A) with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus 2% per annum and (B) with respect to any Alternative Currency Loan, such other default rate, if any, as specified in the applicable Alternative Currency Addendum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum. "Defaulting Lender" means any Lender that (a) has failed to fund any portion of the Term B Loans, Revolving Loans, Alternative Currency Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the applicable Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding. "Disposition" or "Dispose" means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding any Restricted Payment. "Dollar Equivalent" means, at any time, (a) with respect to any amount denominated in U.S. Dollars, such amount, and (b) with respect to any amount denominated in any Foreign 27 [Published CUSIP Number: ____] Currency, the equivalent amount thereof in U.S. Dollars as reasonably determined by the Multicurrency Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of U.S. Dollars with such Foreign Currency. "Domestic Guarantor" means (a) the Company, (b) the parties identified on the signature pages hereto as "Domestic Guarantors" and (c) each Person who after the Closing Date becomes a Domestic Guarantor pursuant to a Joinder Agreement or other documentation in form and substance reasonably acceptable to the Multicurrency Administrative Agent, in each case together with their respective successors and permitted assigns; provided that it is understood and agreed that the Insurance Subsidiary and the Receivables Subsidiary shall not be Domestic Guarantors. "Domestic Loan Party" means any Loan Party that is organized under the laws of one of the states of the United States of America or the District of Columbia. "Domestic Subsidiary" means any Subsidiary that is organized under the laws of any political subdivision of the United States. "Dutch Borrower" means Invacare Holdings C.V., a Netherlands wholly owned partnership Subsidiary of the Company. "Dutch Civil Code" means the Burgerlijk Wetboek. "Dutch Collateral Documents" means a collective reference to, as amended, modified, supplemented, or restated from time to time, (a) the Security Agreement, dated as of the Closing Date, between Invacare Holdings, LLC, Invacare Holdings C.V., Invacare Holdings Two B.V., Invacare B.V., each as security providers, and National City Bank, as Collateral Agent, and Invacare Holdings Two B.V. and Invacare B.V., as those companies whose shares are being pledged and (b) such other documents executed and delivered in connection with the attachment and perfection of the security interests granted to secure the Foreign Obligations. "Eligible Assignee" means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)). "EMU" means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998. "EMU Legislation" means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency. "English Borrower" means Invacare Limited, a company incorporated under the laws of England and Wales whose registered number is 5178693 and wholly owned Subsidiary of the Company. 28 [Published CUSIP Number: ___] "English Collateral Documents" means a collective reference to, as amended, modified, supplemented, or restated from time to time, (a) a security agreement dated as of the Closing Date between the English Borrower and the Collateral Agent as English security trustee, (b) a security agreement dated as of the Closing Date between Invacare UK Operations Limited and the Collateral Agent as English security trustee, (c) a mortgage of shares dated as of the Closing Date between Scandinavian Mobility International ApS and the Collateral Agent as English security trustee, (d) an account security agreement dated as of the Closing Date between the Swiss Borrower and the English security trustee, (e) an account security agreement dated as of the Closing Date between Invacare Holdings Two B.V. and the Collateral Agent as English security trustee, (f) an account security agreement dated as of the Closing Date between Invacare Holdings C.V. and the Collateral Agent as English security trustee, (g) an IP security agreement dated as of the Closing Date between Invacare Corporation and the Collateral Agent as English security trustee, (h) an IP security agreement dated as of the Closing Date between Scandinavian Mobility International ApS and the Collateral Agent as English security trustee, (i) an IP security agreement between Invacare Australia PTY Limited and the Collateral Agent as English security trustee, (j) such other documents executed and delivered in connection with the attachment and perfection of the security interests granted to secure the Foreign Obligations, other than the IP security agreement described in paragraph (g) which is granted to secure all Obligations of the Loan Parties, and (k) a security trust agreement dated as of the Closing Date between the Collateral Agent as the English security trustee and the Obligors (as defined therein). "English Non-Bank Lender" means a Lender that gives a Tax Confirmation to the Company or the English Borrower and to the Multicurrency Administrative Agent. "Environmental Laws" means any and all federal, state, local, provincial, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems. "Environmental Liability" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. "Environmental Permit" means any permit, approval, identification number, license or other authorization required under any Environmental Law. "Equity Interests" means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership 29 [Published CUSIP Number: ___] or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination. "ERISA" means the Employee Retirement Income Security Act of 1974. "ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code). "ERISA Event" means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate. "Euro" and "EUR" mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation. "Eurocurrency Rate" means, for any Interest Period with respect to a Eurocurrency Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Multicurrency Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the "Eurocurrency Rate" for such Interest Period shall be the rate per annum determined by the Multicurrency Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted by National City Bank and with a term equivalent to such Interest Period would be offered by National City Bank's London Branch (or other National City Bank branch or Affiliate) to major banks in the London or other offshore interbank market for such currency at their request at 30 [Published CUSIP Number: ___] approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period. "Eurocurrency Rate Loan" means a Revolving Loan or an Alternative Currency Loan that bears interest at a rate based on the Eurocurrency Rate or, with respect to an Australian Revolving Loan, the Bank Bill Rate. Eurocurrency Rate Loans may be denominated in U.S. Dollars, Australian Dollars or in an Alternative Currency. All Australian Revolving Loans and Alternative Currency Loans must be Eurocurrency Rate Loans. "Event of Default" has the meaning specified in Section 8.01. "Excess Cash Flow" means, for any fiscal year of the Company, the sum of (a) Consolidated EBITDA for such fiscal year minus (b) the sum (for such fiscal year) of (i) Consolidated Interest Charges actually paid in cash by the Company and its Subsidiaries, (ii) scheduled principal repayments, to the extent actually made, of Term B Loans pursuant to Section 2.07(a), (iii) all income taxes actually paid in cash by the Company and its Subsidiaries and (iv) Capital Expenditures actually made by the Company and its Subsidiaries minus (c) the Consolidated Working Capital Adjustment for such fiscal year minus (d) all cash paid by the Company and its Subsidiaries as consideration for Permitted Acquisitions during such fiscal year. "Exchange Act" means the Securities Exchange Act of 1934 and the applicable rules, regulations, standards and practices promulgated, approved or incorporated by the SEC thereunder or in connection therewith, in each case as amended, modified or supplemented from time to time. "Exchange Percentage" means, as to each Revolving Lender, a fraction, expressed as a decimal, in each case determined on the date of occurrence of a Sharing Event (but before giving effect to any actions to occur on such date pursuant to Article 12) of which (a) the numerator shall be the Applicable Percentage of such Lender of (x) the aggregate outstanding principal of all Revolving Loans and Swing Line Loans (taking the Dollar Equivalents of any amounts expressed in a Foreign Currency on the date of the occurrence of the Sharing Event) and (y) the aggregate Unreimbursed Amount of outstanding Letters of Credit, and (b) the denominator of which shall be the sum of (i) the aggregate outstanding principal of all Revolving Loans and Swing Line Loans (taking the Dollar Equivalents of any amounts expressed in a Foreign Currency on the date of the occurrence of the Sharing Event) plus (ii) the aggregate Unreimbursed Amount of outstanding Letters of Credit. "Excluded Issuance" by any Person means an issuance of shares of capital stock of (or other ownership or profit interests in) such Person upon the exercise of warrants, options, conversion or other rights for the purchase of such capital stock (or other ownership or profit interest). "Excluded Taxes" means, with respect to any Administrative Agent, Lender, L/C Issuer or other recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated) or 31 [Published CUSIP Number: ___] capital pursuant to the Canadian Tax Act and corresponding provincial legislation, and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) (i) in the case of the Company, any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Company is located and (ii) in the case of the Canadian Borrower, any branch profits taxes imposed by Canada or any province thereof or any similar tax imposed by any other jurisdiction in which the Canadian Borrower is located, (c) except as provided in the following sentence, in the case of a Foreign Lender (other than an assignee pursuant to a request by the Company under Section 11.13), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender's failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower with respect to such withholding tax pursuant to Section 3.01(a) and (d) except as provided in the following sentence, any withholding tax that is imposed on amounts payable to a Canadian Revolving Lender that becomes a Foreign Lender after the time such Canadian Revolving Lender becomes a party hereto, but only to the extent such Canadian Revolving Lender becomes a Foreign Lender other than as a result of a Change in Law and only to the extent that such withholding tax results from such Canadian Revolving Lender becoming a Foreign Lender. Notwithstanding anything to the contrary contained in this definition, "Excluded Taxes" shall not include any withholding tax imposed at any time on payments made by or on behalf of a Foreign Loan Party to any Lender hereunder or under any other Loan Document, provided that such Lender shall have complied with the last paragraph of Section 3.01(e). "Existing Credit Agreement" means that certain Credit Agreement dated as of January 14, 2005 among the Company and certain borrowing subsidiaries, JPMorgan Chase Bank, N.A., as agent, and a syndicate of lenders, as amended, modified, supplemented or restated. "Existing Letters of Credit" means the letters of credit set forth on Schedule 1.01(b). "Extraordinary Receipt" means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments; provided, however, that an Extraordinary Receipt shall not include (a) cash receipts from proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments to the extent that such proceeds, awards or payments (i) in respect of loss or damage to equipment, fixed assets or real property are applied (or in respect of which expenditures were previously incurred) to replace or repair the equipment, fixed assets or real property in respect of which such proceeds were received in accordance with the terms of Section 2.05(b)(v) or (ii) are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such 32 [Published CUSIP Number: ___] Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto, (b) proceeds of life insurance policies that support obligations of the Company and its Subsidiaries under benefit plans and (c) tax refunds up to an aggregate amount of $5,000,000. "Facility" means the Term B Facility, the Multicurrency Facility, the Australian Facility, the Canadian Facility or an Alternative Currency Facility, as the context may require. "Facility Fee" has the meaning set forth in Section 2.09(a). "Federal Funds Rate" means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to National City Bank on such day on such transactions as determined by the Multicurrency Administrative Agent. "Fee Letter" means the letter agreement, dated December 21, 2006, among the Company, the Multicurrency Administrative Agent and the Arrangers. "Fonde de pouvoir" has the meaning specified in Section 9.11. "Foreign Borrower" has the meaning specified in the introductory paragraph hereto. "Foreign Currency" means (a) a Foreign Syndicated Currency, (b) Australian Dollars, (c) Canadian Dollars or (d) an Alternative Currency. "Foreign Currency Equivalent" means, at any time, with respect to any amount denominated in U.S. Dollars, the equivalent amount thereof in the applicable Foreign Currency as determined by the Multicurrency Administrative Agent or the Principal L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Foreign Currency with U.S. Dollars. "Foreign Currency Loan" means a Loan denominated in a Foreign Currency. "Foreign Currency Reserve" means, at any time, the U.S. Dollar amount equal to 5% of the Outstanding Amount of Revolving Loans, Alternative Currency Loans and Letters of Credit denominated in Foreign Currencies at such time. "Foreign Currency Sublimit" means an amount equal to the lesser of the Aggregate Commitments and $110,000,000. The Foreign Currency Sublimit is part of, and not in addition to, the Aggregate Commitments. 33 [Published CUSIP Number: ___] "Foreign Government Scheme or Arrangement" has the meaning specified in Section 5.12(d). "Foreign Guarantor" means (a) the Australian Guarantors, (b) the Canadian Guarantors, (c) the Multicurrency Foreign Guarantors, (d) the other parties identified on the signature pages hereto as "Foreign Guarantors" and (e) each Person who after the Closing Date becomes a Foreign Guarantor pursuant to a Joinder Agreement or other documentation in form and substance reasonably acceptable to the Multicurrency Administrative Agent, in each case together with their respective successors and permitted assigns. "Foreign Lender" means (a) with respect to the Company, any Lender that is organized under the laws of a jurisdiction other than that in which the Company is resident for tax purposes, (b) with respect to the Canadian Borrower, any Lender that is a non-resident of Canada for purposes of the Canadian Tax Act and is not an authorized foreign bank for purposes of the Canadian Tax Act that is deemed to be resident in Canada for purposes of Part XIII of the Canadian Tax Act in respect of all payments to such Lender hereunder and (c) with respect to the Australian Borrower, any Lender that is organized under the laws of a jurisdiction other than that in which the Australian Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. "Foreign Loan Party" means a Loan Party that is a Foreign Subsidiary. "Foreign Obligations" means all Obligations of the Foreign Loan Parties; provided that in relation to any Dutch Borrower or any other Foreign Guarantor incorporated under Dutch law the Foreign Obligations will not include any liability to the extent that it would result in any security provided by such Dutch entity constituting unlawful financial assistance within the meaning of article 2:207(c) or article 2:98(c) of the Dutch Civil Code. . "Foreign Plan" has the meaning specified in Section 5.12(d). "Foreign Shell Subsidiaries" means MSS Holdings Ltd., MSS (Europe) Ltd, MSS Care Direct Ltd, MSS Ltd and Alber GmbH. "Foreign Subsidiary" means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia. "Foreign Syndicated Currency" means any currency which is approved by the applicable Lenders in accordance with Section 1.06 and approved by the Multicurrency Administrative Agent; provided, that, subject to the terms of this Agreement (including without limitation Section 3.02), Sterling, Kroner and Euro shall be deemed approved by the Multicurrency Administrative Agent and shall be deemed to be Foreign Syndicated Currencies unless designated by the Company as an Alternative Currency, in which case such currency shall be an 34 [Published CUSIP Number: ___] Alternative Currency if agreed to by all Alternative Currency Lenders lending such Alternative Currency and the Multicurrency Administrative Agent. "FRB" means the Board of Governors of the Federal Reserve System of the United States. "Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course. "GAAP" means, with respect to the Company or any Domestic Subsidiary, generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, the Public Company Accounting Oversight Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied and, with respect to any Foreign Subsidiary, the foreign equivalent thereof. "Governmental Authority" means the government of the United States or any other nation, or of any political subdivision thereof, whether state, local or provincial, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank). "Granting Lender" has the meaning specified in Section 11.06(h). "Guarantee" means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that Guarantee shall not include recourse obligations of the Company and its Subsidiaries with respect to any Vendor Financing. The amount of any Guarantee shall be deemed to be an 35 [Published CUSIP Number: ___] amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term "Guarantee" as a verb has a corresponding meaning. "Guarantors" means the Domestic Guarantors, the Australian Guarantors, the Canadian Guarantors and the Foreign Guarantors. "Guaranty" means a Guarantee made by one or more of the Guarantors in favor of the Secured Parties. "Guidelines" means, collectively, the circular "Syndicated Loans" of January 2000 (S-02.128) (Merkblatt "Steuerliche Benhandlung von Konsortialdarlehen, Schuldscheindarlehen, Wechseln und Unterbeteiligungen" vom Januar 2000), the circular "Bonds" of April 1999 (S-02.122.1) (Merkblatt "Obligationen" vom April 1999), the circular "Client Credit Balances" of April 1999 (S-02.122.2) (Merkblatt "Kundenguthaben" vom April 1999), as issued and amended from time to time by the Swiss Federal Tax Authorities.. "Hazardous Materials" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law. "Hedge Bank" means any Person that, at the time it enters into a Secured Hedge Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Secured Hedge Agreement. "HHS" means the United States Department of Health and Human Services and any successor thereof. "Immaterial Subsidiary" means any Subsidiary that, when combined with all other "Immaterial Subsidiaries," (a) generates less than 1% of Consolidated Total Revenues or (b) owns or holds less than 1% of Consolidated Total Assets. "Indebtedness" means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), Bankers' Acceptances, bank guaranties, surety bonds and similar instruments; 36 [Published CUSIP Number: ___] (c) net obligations of such Person under any Swap Contract; (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) all Attributable Indebtedness of such Person and all Synthetic Debt of such Person; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and (h) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. "Indemnified Taxes" means Taxes other than Excluded Taxes. "Indemnitees" has the meaning specified in Section 11.04(b). "Information" has the meaning specified in Section 11.07. "Information Memorandum" means the information memorandum dated January, 2007 used by the Arrangers in connection with the syndication of the Commitments. "Insurance Subsidiary" means Invatection Insurance Company, a Vermont corporation. "Interest Payment Date" means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period or CDOR Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period or CDOR Period for a Eurocurrency Rate Loan or a CDOR Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) with respect to any Alternative Currency Loan, the date specified as the date on which interest is payable in the 37 [Published CUSIP Number: ___] applicable Alternative Currency Addendum; and (c) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date. "Interest Period" means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Company in its Committed Loan Notice or such other period that is twelve months or less requested by the Company and consented to by all the applicable Lenders; provided that: (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (iii) no Interest Period shall extend beyond the Maturity Date. "Internal Control Event" means a material weakness in, or fraud that involves management or other employees who have a significant role in, the Company's internal controls over financial reporting, in each case as described in the Securities Laws. "Investment" means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit or all or a substantial part of the business of, such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment. "IP Rights" has the meaning specified in Section 5.17. "IRS" means the United States Internal Revenue Service. "ISP" means, with respect to any Letter of Credit, the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance). 38 [Published CUSIP Number: ___] "Issuer Documents" means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Company (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit. "Joinder Agreement" means, a joinder agreement substantially in the form of Exhibit F hereto, executed and delivered by a new Guarantor in accordance with the provisions of Section 6.11. "Kroner" means the lawful currency of Denmark, Norway and Sweden, as a Borrower may select. "Laws" means, collectively, all international, foreign, federal, state, local and provincial statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. "L/C Advance" means a Multicurrency L/C Advance or a Canadian L/C Advance as the context requires. "L/C Borrowing" means a Multicurrency L/C Borrowing and/or a Canadian L/C Borrowing as the context requires. "L/C Credit Extension" means, any Multicurrency L/C Credit Extension and/or Canadian L/C Credit Extension as the context may require. "L/C Issuer" means the Multicurrency L/C Issuer and/or the Canadian L/C Issuer as the context may require. "L/C Obligations" means, as at any date of determination, the Multicurrency L/C Obligations and/or the Canadian L/C Obligations, as appropriate. "Leasehold Mortgaged Properties" has the meaning set forth in Section 6.20(b). "Lender" has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender. "Lending Office" means, as to any Lender, the office or offices of such Lender described as such in such Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Multicurrency Administrative Agent. "Letter of Credit" means Multicurrency Letters of Credit and/or Canadian Letters of Credit as the context may require. 39 [Published CUSIP Number: ___] "Letter of Credit Application" means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by each L/C Issuer. "Letter of Credit Expiration Date" means the day that is seven days prior to the Maturity Date then in effect for the Revolving Facility (or, if such day is not a Business Day, the next preceding Business Day). "Letter of Credit Fee" means the Multicurrency Letter of Credit Fee and/or the Canadian Letter of Credit Fee as the context requires. "Letter of Credit Sublimit" means the Multicurrency Letter of Credit Sublimit and the Canadian Letter of Credit Sublimit, as the context may require. "Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing). "Loan" means an extension of credit by a Lender to the Company under Article II in the form of a Term B Loan, a Revolving Loan, Alternative Currency Loan or a Swing Line Loan. "Loan Documents" means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g) each Secured Hedge Agreement, (h) each Secured Cash Management Agreement, (i) each Alternative Currency Addendum, (j) each Committed Loan Notice, (k) each Compliance Certificate and (l) each other agreement or certificate entered into or delivered by a Loan Party in accordance with the terms of the foregoing; provided that for purposes of the definition of "Material Adverse Effect" and Articles IV through IX, "Loan Documents" shall not include Secured Hedge Agreements or Secured Cash Management Agreements. "Loan Parties" means, collectively, the Company, each Foreign Borrower and each Guarantor. "Loan Party Materials" has the meaning specified in Section 6.02. "Mandatory Cost" means, with respect to any period, the percentage rate per annum determined in accordance with Schedule 1.01(a). "Material Adverse Effect" means (a) for any period prior to the Closing Date, a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, except as disclosed in the Company's 8K filings with the SEC on January 17, 2007 and February 1, 2007 (the "Publicly Disclosed Events"); (b) for any period 40 [Published CUSIP Number: ___] from and after the Closing Date, a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, including any material adverse change or development in the Publicly Disclosed Events that results in a Material Adverse Effect under this clause (b); (c) a material impairment of the rights and remedies of any Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party. "Material Contract" means, with respect to any Person, each contract or agreement (i) to which such Person is a party that is disclosed in a public filing of the Company with the SEC, (ii) that involves aggregate consideration payable to or by such Person of $5,000,000 or more in any year or (iii) that is otherwise material to the business, condition (financial or otherwise), operations, performance, properties or prospects of such Person. "Maturity Date" means (a) with respect to the Revolving Facility and Alternative Currency Loans, February 12, 2012 and (b) with respect to the Term B Facility, February 12, 2013; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day. "Medicaid" means that entitlement program under Title XIX of the Social Security Act that provides federal grants to states for medical assistance programs based on specific eligibility criteria. "Medicaid Provider Agreement" means an agreement entered into between a state agency or other such entity administering the Medicaid program and a health care provider or supplier under which the health care provider or supplier agrees to provide services for Medicaid patients in accordance with the terms of the agreement and Medicaid Regulations. "Medicaid Regulations" means, collectively, (a) all federal statutes (whether set forth in Title XIX of the Social Security Act or elsewhere) affecting Medicaid and any statutes succeeding thereto; (b) all applicable provisions of all federal rules, regulations, manuals and orders and administrative, reimbursement and other guidelines having the force of law of all Governmental Authorities promulgated pursuant to or in connection with the statutes described in clause (a) above; (c) all state statutes and plans for medical assistance enacted in connection with the statutes and provisions described in clauses (a) and (b) above; and (d) all applicable provisions of all rules, regulations, manuals and orders and administrative, reimbursement and other guidelines having the force of law of all Governmental Authorities promulgated pursuant to or in connection with the statutes described in clause (c) above and all state administrative, reimbursement and other guidelines of all Governmental Authorities having the force of law promulgated pursuant to or in connection with the statutes described in clause (b) above, in each case as may be amended, supplemented or otherwise modified from time to time. "Medical Reimbursement Programs" means the Medicare, Medicaid and TRICARE programs and any other healthcare program operated by or financed in whole or in part by any 41 [Published CUSIP Number: ___] foreign, domestic, federal, state, local or provincial government and any other non-government funded third party payor programs. "Medicare" means that government-sponsored entitlement program under Title XVIII of the Social Security Act that provides for a health insurance system for eligible elderly and disabled individuals. "Medicare Provider Agreement" means an agreement entered into between CMS or other such entity administering the Medicare program on behalf of CMS, and a health care provider or supplier under which the health care provider or supplier agrees to provide services for Medicare patients in accordance with the terms of the agreement and Medicare Regulations. "Medicare Regulations" shall mean, collectively, all federal statutes (whether set forth in Title XVIII of the Social Security Act or elsewhere) affecting the health insurance program for the aged and disabled established by Title XVIII of the Social Security Act and any statutes succeeding thereto; together with all applicable provisions of all rules, regulations, manuals and orders and administrative, reimbursement and other guidelines having the force of law of all Governmental Authorities (including, without limitation, HHS, CMS, the OIG or any person succeeding to the functions of any of the foregoing) promulgated pursuant to or in connection with any of the foregoing having the force of law, as each may be amended, supplemented or otherwise modified from time to time. "Moody's" means Moody's Investors Service, Inc. and any successor thereto. "Mortgage" has the meaning specified in Section 4.01(f)(i). "Mortgage Policy" has the meaning specified in Section 4.01(f)(iii). "Mortgaged Properties" has the meaning specified in Section 4.01(f)(i). "Multicurrency Administrative Agent" means National City Bank in its capacity as multicurrency administrative agent under any of the Loan Documents, or any successor multicurrency administrative agent. "Multicurrency Administrative Agent's Office" means the Multicurrency Administrative Agent's address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Multicurrency Administrative Agent may from time to time notify to the Company and the Lenders. "Multicurrency Availability Period" means, the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Multicurrency Facility as provided herein, and (c) the date of termination of the commitment of each Multicurrency Lender to make Multicurrency Revolving Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions as provided herein. 42 [Published CUSIP Number: ___] "Multicurrency Collateral" means a collective reference to the collateral which is identified in, and at any time will be covered by, the U.S. Collateral Documents. "Multicurrency Collateral Agent" means National City Bank in its capacity as multicurrency collateral agent under any of the Loan Documents, or, in the case of the English Collateral Documents, in its capacity as security trustee, or any successor multicurrency collateral agent. "Multicurrency Collateral Agent Claim" means any amount which a Foreign Loan Party (other than an Australian Loan Party or a Canadian Loan Party) owes to the Multicurrency Collateral Agent under Section 3.08. "Multicurrency Facility" means, at any time, the aggregate amount of the Multicurrency Revolving Lenders' Multicurrency Revolving Commitments at such time. "Multicurrency Foreign Guarantors" means, as of any date of determination, the Subsidiaries of the Company organized in England and Wales, Denmark, The Netherlands and Switzerland that have provided Guarantees of the Foreign Obligations as of such date. "Multicurrency L/C Advance" means, with respect to each Multicurrency Revolving Lender, such Multicurrency Lender's funding of its participation in any Multicurrency L/C Borrowing in accordance with its Applicable Revolving Credit Percentage. All Multicurrency L/C Advances shall be denominated in U.S. Dollars. "Multicurrency L/C Borrowing" means an extension of credit resulting from a drawing under any Multicurrency Letter of Credit which has not been reimbursed on the date when made or refinanced as a Multicurrency Revolving Borrowing. All Multicurrency L/C Borrowings shall be denominated in U.S. Dollars. "Multicurrency L/C Credit Extension" means, with respect to any Multicurrency Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof. "Multicurrency L/C Issuer" means (a) the Principal L/C Issuer, and (b) any other Revolving Lender designated by the Company that agrees to issue one or more Multicurrency Letters of Credit and that is approved by the Multicurrency Administrative Agent, in each case in its capacity as issuer of one or more Multicurrency Letters of Credit hereunder, or any successor issuer of Multicurrency Letters of Credit hereunder. "Multicurrency L/C Obligations" means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Multicurrency Letters of Credit plus the aggregate of all Multicurrency Unreimbursed Amounts, including all Multicurrency L/C Borrowings. For purposes of computing the amount available to be drawn under any Multicurrency Letter of Credit, the amount of such Multicurrency Letter of Credit shall be determined in accordance with Section 1.09. For all purposes of this Agreement, if on any date of determination a Multicurrency Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Multicurrency 43 [Published CUSIP Number: ___] Letter of Credit shall be deemed to be "outstanding" in the amount so remaining available to be drawn. "Multicurrency Lender" means the Multicurrency Revolving Lenders and the Term B Lenders, collectively or individually, as the context may require. "Multicurrency Letter of Credit" means any letter of credit issued by a Multicurrency L/C Issuer hereunder and shall include the Existing Letters of Credit. A Multicurrency Letter of Credit may be a commercial letter of credit or a standby letter of credit. Multicurrency Letters of Credit may be issued in U.S. Dollars or in a Foreign Syndicated Currency. "Multicurrency Letter of Credit Fee" has the meaning specified in Section 2.03(i). "Multicurrency Letter of Credit Sublimit" means an amount equal to $20,000,000. The Multicurrency Letter of Credit Sublimit is part of, and not in addition to, the Multicurrency Facility. "Multicurrency Loan Party" means a Domestic Loan Party or a Foreign Loan Party, as the context requires. "Multicurrency Obligations" means the Obligations of the Multicurrency Loan Parties. "Multicurrency Mortgages" means the mortgages, deeds of trust, deeds to secure debt or like instruments given by the Multicurrency Loan Parties to the Multicurrency Collateral Agent to secure the Obligations, as such instruments may be amended, supplemented, restated or modified from time to time. "Multicurrency Revolving Borrowing" means a borrowing consisting of simultaneous Multicurrency Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Multicurrency Revolving Lenders pursuant to Section 2.01(b). "Multicurrency Revolving Commitment" means, as to each Multicurrency Revolving Lender, its obligation to (a) make Multicurrency Revolving Loans to the Company pursuant to Section 2.01(b), and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Multicurrency Revolving Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Multicurrency Revolving Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. "Multicurrency Revolving Lender" means, at any time, any Lender that has a Multicurrency Revolving Commitment at such time. "Multicurrency Revolving Loan" has the meaning specified in Section 2.01(b). 44 [Published CUSIP Number: ___] "Multicurrency Revolving Note" means the promissory note in substantially the form of Exhibit C-2. "Multicurrency Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i)(A). "Multiemployer Plan" means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions. "National City Bank" means National City Bank and its successors. "Net Cash Proceeds" means: (a) with respect to any Disposition by any Loan Party or any of its Subsidiaries, or any Extraordinary Receipt received or paid to the account of any Loan Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents) or any payment which must by its terms be made in order to obtain a necessary consent, (B) the reasonable and customary commissions, fees and expenses incurred by such Loan Party or such Subsidiary in connection with such transaction and (C) all taxes reasonably estimated to be actually payable or accrued as a liability under GAAP within two years of the date of the relevant transaction as a result of any gain recognized in connection therewith; provided that, if the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall, upon the Company's reasonable determination that such excess exists, constitute Net Cash Proceeds; and (b) with respect to the sale or issuance of any Equity Interest by any Loan Party or any of its Subsidiaries, or the incurrence or issuance of any Indebtedness by any Loan Party or any of its Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, attorneys fees, accounting fees and other reasonable and customary out-of-pocket expenses, incurred by such Loan Party or such Subsidiary in connection therewith and net of taxes paid or payable as a result of such sale. "Non-Bank Rules" means the Ten Non-Bank Rule and the Twenty Non-Bank Rule. "Note" means a Term B Note, a Multicurrency Revolving Note, an Australian Revolving Note, a Canadian Revolving Note or an Alternative Currency Note, as the context may require. 45 [Published CUSIP Number: ___] "NPL" means the National Priorities List under CERCLA. "Obligations" means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. "OIG" means the Office of Inspector General of HHS and any successor thereof. "OIG Investigation" means the investigation initiated pursuant to a subpoena received by the Company from the U.S. Department of Justice seeking documents relating to three long-standing and well-known promotional and rebate programs maintained by the Company and its Subsidiaries. "Organization Documents" means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity; and (d) with respect to any Person organized outside the United States, any constitutive or organizational document comparable to the documents set forth in clauses (a) - -- (c) above and such other documents as may be required by applicable law. "Other Taxes" means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document. "Outstanding Amount" means (a) with respect to Term B Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Term B Loans occurring on such date; (b) with respect to Australian Revolving Loans, Canadian Revolving Loans and Multicurrency Revolving Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Australian Revolving Loans, Canadian Revolving Loans and Multicurrency Revolving Loans, respectively, on such date; (c) with respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on such date; (d) with respect to Alternative Currency Loans 46 [Published CUSIP Number: ___] under an Alternative Currency Facility on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Alternative Currency Loans occurring on such date; and (e) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts. "Overnight Rate" means, for any day, (a) with respect to any amount denominated in U.S. Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate reasonably determined by the Multicurrency Administrative Agent, an L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation, (b) with respect to any amount denominated in Australian Dollars, an overnight rate reasonably determined by the Australian Administrative Agent in accordance with banking industry rules on interbank compensation, (c) with respect to any amount denominated in Canadian Dollars, an overnight rate reasonably determined by the Canadian Administrative Agent in accordance with banking industry rules on interbank compensation and (d) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of National City Bank in the applicable offshore interbank market for such currency to major banks in such interbank market. "Participant" has the meaning specified in Section 11.06(d). "Participating Member State" means each state so described in any EMU Legislation. "PBGC" means the Pension Benefit Guaranty Corporation. "PCAOB" means the Public Company Accounting Oversight Board. "Pension Plan" means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years. "Permitted Acquisition" means an acquisition or purchase permitted by the terms of Section 7.03(h). "Permitted Liens" means Liens permitted by the terms of Section 7.01. "Permitted Non-Qualifying Institution" means any bank, financial institution, trust, fund or other entity that is regularly engaged in or established for the purpose of making, purchasing 47 [Published CUSIP Number: ___] or investing in loans, securities or other financial assets, that (a) is not a Qualifying Swiss Bank, (b) has satisfied the requirements of Section 11.06(j)(iii); (c) has become a Lender in accordance with the provisions of Section 11.06 (Successor and Assigns); and (d) has not ceased to be a Lender or ceased to have any interest in any rights of a Lender hereunder e.g., through a subparticipation. "Person" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. "Plan" means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) established by the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate. "Platform" has the meaning specified in Section 6.02. "Principal L/C Issuer" means National City Bank. "Pro Forma Basis" means, for purposes of calculating the financial covenants set forth in Section 7.11, the Consolidated Leverage Ratio, Consolidated Total Assets and Consolidated Total Revenue, that any Disposition, Acquisition (or formation of a new Subsidiary) or Restricted Payment shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such transaction for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b). In connection with the foregoing, (a) with respect to any Disposition, (i) income statement and cash flow statement items (whether positive or negative) attributable to the assets and property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period and (b) with respect to any Acquisition (i) income statement items (whether positive or negative) attributable to the Person or assets and property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Company and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by audited financial statements (if available) or other information reasonably satisfactory to the Arrangers and (ii) any Indebtedness incurred or assumed by the Company or any Subsidiary (including the Person or Property acquired) in connection with such transaction and any Indebtedness of the Person or Property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination. "Proposed Permitted Non-Qualifying Institution" has the meaning set forth in Section 11.06(j)(iii). 48 [Published CUSIP Number: ___] "Protected Party" means a Party which is or will be subject to any liability, or required to make any payment, for or on account of Swiss Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Swiss Tax to be received or receivable) under this Agreement. "PPSA" means the Personal Property Security Act as in force from time to time in the relevant province or territory. "Qualifying Lender" means (i) a Lender (other than a Lender within sub-paragraph (ii) below) which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is: (A) a Lender: (1) which is a bank (as defined for the purpose of section 349 of the Taxes Act of the United Kingdom) making an advance under a Loan Document or (2) in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 349 of the Taxes Act of the United Kingdom) at the time that that advance was made, and which is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or (B) a Lender which is: (1) a company resident in the United Kingdom for United Kingdom tax purposes; (2) a partnership each member of which is: (a) a company so resident in the United Kingdom or (b) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (for the purposes of section 11(2) of the Taxes Act of the United Kingdom) the whole of any share of interest payable in respect of that advance that falls to it by reason of sections 114 and 115 of the Taxes Act of the United Kingdom; or (3) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (for the purposes of section 11(2) of the Taxes Act of the United Kingdom) of that company; or (C) a Treaty Lender; or (ii) a building society (as defined for the purpose of section 477A of the Taxes Act of the United Kingdom). "Qualifying Swiss Bank" means any bank or financial institution that is duly characterized as bank under the banking regulations as in force from time to time in its jurisdiction of incorporation and effectively conducts a banking activity with its own infrastructure and staff as principal business purpose in such jurisdiction, in the meaning of the relevant regulations of the Guidelines, in particular Section 3.b) of Circular S-02.122.1 (4.99), Section 4.b) of Circular S-02.122.2 (4.99), and Section I.232 of Circular S-02.128 (1.2000), as issued and amended from time to time by the Swiss Federal Tax Authorities. "Qualifying Swiss Lender" means, (a) a Lender which is entitled to receive interest from the Swiss Borrower without any withholding of deduction (assuming the correctness of the confirmation of that Lender under Section 3.01(i)(i)(C) (Swiss Tax gross-up), the compliance of that Lender with its obligations under Section 11.06 (Successor and Assigns) and the compliance of the Swiss Borrower with the Non Bank Rules); or (b) a Treaty Lender. "Quebec Bond Pledge" means any pledge of a bond, debenture or other title of indebtedness issued pursuant to a Deed of Hypothec granted by a Canadian Loan Party to and in favor of the Canadian Collateral Agent to secure the Canadian Obligations. 49 [Published CUSIP Number: ___] "Receivables Subsidiary" means Invacare Receivables Corporation, a Delaware corporation. "Register" has the meaning specified in Section 11.06(c). "Registered Public Accounting Firm" has the meaning specified by the Securities Laws and shall be independent of the Company as prescribed by the Securities Laws. "Related Parties" means, with respect to any Person, such Person's Affiliates and the partners, directors, officers, employees, trustees, agents and advisors of such Person and of such Person's Affiliates. "Related U.S. Lender" means with respect to any Australian Revolving Lender or Canadian Revolving Lender, the Affiliate (including an agency or branch) of such Lender which maintains a lending office in the United States of America. "Reportable Event" means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived. "Request for a New Alternative Currency Facility" has the meaning specified in Section 1.06(c). "Request for Credit Extension" means (a) with respect to a Borrowing, conversion or continuation of Term B Loans or Revolving Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice. "Required Alternative Currency Lenders" means, as of any date of determination, (a) with respect to any individual Alternative Currency Facility, Alternative Currency Lenders holding more than 50% of the sum of the (i) total Alternative Currency Loans outstanding under such Alternative Currency Facility and (ii) aggregate unused Alternative Currency Commitments under such Alternative Currency Facility; and (b) with respect to any individual Alternative Currency Facility, Alternative Currency Lenders holding more than 50% of the sum of the (i) total Alternative Currency Loans outstanding under such Alternative Currency Facility and (ii) aggregate unused Alternative Currency Commitments under such Alternative Currency Facility; provided that the unused Revolving Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders. "Required Australian Revolving Lenders" means, at any time, the Australian Revolving Lenders holding in the aggregate more than 50% of (a) the unfunded Australian Revolving Commitments and the outstanding Australian Revolving Loans or (b) if the Australian Revolving Commitments have been terminated, the outstanding Australian Revolving Loans. The unfunded Australian Revolving Commitments of, and the outstanding Australian Revolving Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a 50 [Published CUSIP Number: ___] determination of Required Australian Revolving Lenders. For the avoidance of doubt, it is understood and agreed that if an Australian Revolving Lender includes a Related U.S. Lender such Australian Revolving Lender shall be deemed to have a single shared Australian Revolving Commitment for purposes of this definition. "Required Canadian Revolving Lenders" means, at any time, the Canadian Revolving Lenders holding in the aggregate more than 50% of (a) the unfunded Canadian Revolving Commitments and the outstanding Canadian Revolving Loans or (b) if the Canadian Revolving Commitments have been terminated, the outstanding Canadian Revolving Loans. The unfunded Canadian Revolving Commitments of, and the outstanding Canadian Revolving Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Canadian Revolving Lenders. For the avoidance of doubt, it is understood and agreed that if a Canadian Revolving Lender includes a Related U.S. Lender such Canadian Revolving Lender shall be deemed to have a single shared Canadian Revolving Commitment for purposes of this definition. "Required Lenders" means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Lender's risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed "held" by such Revolving Lender for purposes of this definition) and (b) aggregate unused Revolving Commitments and Alternative Currency Commitments; provided that the unused Revolving Commitment and Alternative Currency Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders. For the avoidance of doubt, it is understood and agreed that if an Australian Revolving Lender or a Canadian Revolving Lender includes a Related U.S. Lender such Australian Revolving Lender or Canadian Revolving Lender shall be deemed to have a single shared Australian Revolving Commitment or Canadian Revolving Commitment, as applicable, for purposes of this definition. "Required Multicurrency Revolving Lenders" means, at any time, the Lenders holding in the aggregate more than 50% of (a) the unfunded Multicurrency Revolving Commitments and the outstanding Multicurrency Revolving Loans, L/C Obligations and participations therein or (b) if the Multicurrency Revolving Commitments have been terminated, the outstanding Multicurrency Revolving Loans, L/C Obligations and participations therein (with the aggregate amount of each Multicurrency Revolving Lender's risk participation and funded participation in L/C Obligations being deemed "held" by such Lender for purposes of this definition). The unfunded Multicurrency Revolving Commitments of, and the outstanding Multicurrency Revolving Loans and L/C Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Multicurrency Revolving Lenders. "Required Revolving Lenders" means, as of any date of determination, Revolving Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Lender's risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed "held" by such Revolving Lender for purposes of this definition) and (b) aggregate unused Revolving Commitments; provided that the unused Revolving Commitment of, and the portion of the Total Revolving Credit Outstandings 51 [Published CUSIP Number: ___] held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders. "Required Term B Lenders" means, as of any date of determination, Term B Lenders holding more than 50% of the Term B Facility on such date; provided that the portion of the Term B Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term B Lenders. "Responsible Officer" means the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of a Loan Party or, in the event that a Loan Party is a Dutch limited partnership, any authorized signatory of the general partner that is duly appointed in respect of such partnership, acting in its capacity as general partner of such limited partnership, and any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Multicurrency Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. "Restricted Payment" means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person's stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment. "Reuters Screen CDOR Page" means the display designated as page CDOR on the Reuters Monitor Money Rates Service or other page as may, from time to time, replace that page on that service for the purpose of displaying bid quotations for Bankers' Acceptances accepted by leading Canadian banks. "Revaluation Date" means (a) with respect to any Revolving Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in a Foreign Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in a Foreign Currency pursuant to Section 2.02, (iii) the last Business Day of each month and (iv) such additional dates as the Multicurrency Administrative Agent, Canadian Administrative Agent or Australian Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in a Foreign Syndicated Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by an L/C Issuer under any Letter of Credit denominated in a Foreign Syndicated Currency, (iv) in the case of the Existing Letters of Credit, the Closing Date, (v) the last Business Day of each month and (vi) such additional dates as the 52 [Published CUSIP Number: ___] applicable Administrative Agent or any L/C Issuer shall determine or the Required Lenders shall require. "Revolving Borrowing" means a borrowing consisting of simultaneous Revolving Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.01(b). "Revolving Commitment" means the Australian Revolving Commitment, the Canadian Revolving Commitment and the Multicurrency Revolving Commitment. "Revolving Facility" means the Australian Facility, the Canadian Facility and the Multicurrency Facility. The aggregate principal amount of the Revolving Facility on the Closing Date is $150,000,000. "Revolving Lender" means, at any time, any Lender that has a Revolving Commitment at such time. "Revolving Loan" means an Australian Revolving Loan, a Canadian Revolving Loan or a Multicurrency Revolving Loan. "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto. "Sale and Leaseback Transaction" means, with respect to the Company and its Subsidiaries, any arrangement, directly or indirectly, with any Person whereby the Company or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred. "Same Day Funds" means (a) with respect to disbursements and payments in U.S. Dollars, immediately available funds, and (b) with respect to disbursements and payments in a Foreign Currency, same day or other funds as may be determined by the Multicurrency Administrative Agent or the applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Foreign Currency. "Sarbanes-Oxley" means the Sarbanes-Oxley Act of 2002. "Schedule I Lender" means any Lender named on Schedule I to the Bank Act (Canada). "SEC" means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. "Secured Cash Management Agreement" means any Cash Management Agreement that is entered into by and between the Company and any Cash Management Bank. 53 [Published CUSIP Number: ___] "Secured Hedge Agreement" means any interest rate or currency Swap Contract required or permitted under Article VI or VII that is entered into by and between the Company or any Subsidiary and any Hedge Bank. "Secured Parties" means, collectively, each Administrative Agent, each Collateral Agent, the Lenders, the L/C Issuers, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by any Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents. "Secured Party Claim" means any amount which a Foreign Loan Party (other than an Australian Loan Party or a Canadian Loan Party) owes to a Secured Party under or in connection with the Loan Documents. "Securities Laws" means the Securities Act of 1933, the Exchange Act, Sarbanes-Oxley, and the applicable accounting and auditing principles, rules, regulations, standards and practices promulgated, approved or incorporated by the SEC or the PCAOB, in each case as amended, modified or supplemented from time to time. "Senior Notes" means the 9 3/4% senior unsecured notes of the Company due 2015 in an aggregate principal amount of $175,000,000 issued and sold on the Closing Date pursuant to the Senior Note Documents. "Senior Note Documents" means (a) the Indenture dated as of the Closing Date among the Company, the Guarantors party thereto and Wells Fargo Bank, N.A., as trustee, (b) the Senior Notes and (c) all other agreements, instruments and other documents pursuant to which the Senior Notes have been or will be issued or otherwise setting forth the terms of the Senior Notes or any refinancing, refunding, renewal or extension thereof permitted by Section 7.02(e). "Sharing Event" means (a) the occurrence of any Event of Default under Section 8.01(f) or Section 8.01(g), (b) the declaration of the termination of any Commitment, or the acceleration of the maturity of any Revolving Loans, in each case in accordance with Section 8.02 or (c) the failure of the Borrowers to pay any principal of, or interest on, any Revolving Loans or any L/C Obligations on the relevant Maturity Date. "Signatory Officer" means (a) a Responsible Officer of a Loan Party, (b) the supervisor of treasury services of a Loan Party and (c) any other officer or employee of the applicable Loan Party so designated by any of the Responsible Officers in a notice to the Multicurrency Administrative Agent. Any document delivered hereunder that is signed by a Signatory Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Signatory Officer shall be conclusively presumed to have acted on behalf of such Loan Party. "Solvent" and "Solvency" mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount 54 [Published CUSIP Number: ___] of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. "SPC" has the meaning specified in Section 11.06(h). "Special Notice Currency" means a Foreign Currency other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe. "Spot Rate" for a currency means the rate reasonably determined by the Multicurrency Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Multicurrency Administrative Agent may obtain such spot rate from another financial institution designated by the Multicurrency Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that any L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in a Foreign Syndicated Currency that is issued by such L/C Issuer. "Sterling" and "Pound Sterling " mean the lawful currency of the United Kingdom. "Subordinated Debt" shall mean (a) the Convertible Notes, (b) subordinated Indebtedness of any Loan Party evidenced by a Subordinated Seller Note and (c) any other any Indebtedness incurred by any Loan Party which by its terms is specifically subordinated in right of payment to the prior payment of any or all of the Obligations and contains subordination and other terms acceptable to the Multicurrency Administrative Agent. "Subordinated Seller Note" shall mean a promissory note issued by any Loan Party to the applicable seller as part of the consideration paid by any Loan Party to such seller in connection with a Permitted Acquisition. "Subsidiary" of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are 55 [Published CUSIP Number: ___] at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Company. "Swap Contract" means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a "Master Agreement"), including any such obligations or liabilities under any Master Agreement. "Swap Termination Value" means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender). "Swing Line" means the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.04. "Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to Section 2.04. "Swing Line Lender" means National City Bank in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder. "Swing Line Loan" has the meaning specified in Section 2.04(a). "Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B. 56 [Published CUSIP Number: ___] "Swing Line Sublimit" means an amount equal to the lesser of (a) $30,000,000 and (b) the Revolving Facility. The Swing Line Sublimit is part of, and not in addition to, the Revolving Facility. "Swiss Available Amount" has the meaning set forth in Section 3.01(i)(i)(A). "Swiss Borrower" means Invacare International SARL, a Swiss corporation and wholly owned Subsidiary of the Company. "Swiss Collateral Documents" means a collective reference to, as amended, modified, supplemented, or restated from time to time, (a) the Swiss Security Agreement between Invacare Holdings Two B.V., as pledgor, Invacare International Sarl, as pledgor and assignor, Kuschall AG, as pledgor and assignor, and the Collateral Agent, (b) the Quota Pledge Agreement between Invacare Holdings Two B.V., as pledgor, and the Collateral Agent, and (c) such other documents executed and delivered in connection with the attachment and perfection of the security interests granted to secure the Foreign Obligations. "Swiss Federal Tax Authorities" means the Swiss federal tax authorities referred to in Article 34 of the Swiss Federal Act on Withholding Tax (Bunde gesetz uber die Verrechnung steuer vom 13. Oktober 1965, SR 642.21). "Swiss Federal Withholding Tax" means the tax levied pursuant to the Swiss Federal Act on Withholding Tax (Bunde gesetz uber die Verrechnung steuer vom 13. Oktober 1965, SR 642.21). "Swiss Francs" or "CHF" means Swiss francs, the lawful currency of Switzerland. "Swiss Guarantor" has the meaning set forth in Section 10.08(b). "Swiss Obligor" means the Swiss Borrower, each Swiss Guarantor and each other Foreign Guarantor. "Swiss Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any related penalty or interest payable in connection with any failure to pay or any delay in paying the same). "Swiss Tax Credit" means a credit against, relief or remission for, refund or repayment of any Swiss Tax. "Swiss Tax Deduction" means a deduction or withholding for or an account of Swiss Tax form a payment under this Agreement. "Swiss Tax Payment" means either the increase in a payment made by the Swiss Borrower to a Lender under Section 3.01(i)(i) (Swiss Tax gross-up) or Section 2.08(d) (Minimum Interest Clause) or a payment under Section 3.01(i)(iii) (Tax indemnity). 57 [Published CUSIP Number: ___] "Syndicated Currency" means U.S. Dollars and any Foreign Syndicated Currency. "Synthetic Debt" means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of "Indebtedness" or as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP. "Synthetic Lease Obligation" means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment). "TARGET Day" means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Multicurrency Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro. "Tax Confirmation" means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document is either: (a) a company resident in the United Kingdom for United Kingdom tax purposes; or (b) a partnership each member of which is: (i) a company so resident in the United Kingdom or (ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (for the purposes of section 11(2) of the Taxes Act of the United Kingdom) the whole of any share of interest payable in respect of that advance that falls to it by reason of sections 114 and 115 of the Taxes Act of the United Kingdom; or (c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (for the purposes of section 11(2) of the Taxes Act of the United Kingdom) of that company. "Tax Deduction" means a deduction or withholding for or on account of Taxes from a payment under a Loan Document. "Tax Payment" means either the increase in a payment made by a Loan Party to a Lender under Section 3.01 or a payment under Section 3.01. "Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. 58 [Published CUSIP Number: ___] "Ten Non-Bank Rule" means the rule pursuant to the Guidelines, and in particular circular S-02.122.1 (4.99) and circular S-02.128 (1.2000) of the Swiss Federal Tax Administration (or legislation and/or regulations addressing the same issues, which are in force at such time) according to which a Swiss issuer may not issue, at the same time, directly or indirectly (notably by way of assignment or sub-participation), collective written debt instruments (such as bonds) at identical conditions to more than ten (10) lenders other than Qualifying Swiss Banks without triggering Swiss Federal Withholding Tax on the interest payments related thereto and/or Swiss issuance stamp tax upon issuance. "Term B Borrowing" means a borrowing consisting of simultaneous Term B Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Term B Lenders pursuant to Section 2.01(a). "Term B Commitment" means, as to each Term B Lender, its obligation to make Term B Loans to the Company pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule 2.01 under the caption "Term B Commitment" or opposite such caption in the Assignment and Assumption pursuant to which such Term B Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. "Term B Facility" means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term B Commitments at such time and (b) thereafter, the aggregate principal amount of the Term B Loans of all Term B Lenders outstanding at such time. The aggregate principal amount of the Term B Facility on the Closing Date is $250,000,000. "Term B Lender" means at any time, (a) on or prior to the Closing Date, any Lender that has a Term B Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term B Loans at such time. "Term B Loan" means an advance made by any Term B Lender under the Term B Facility. "Term B Note" means a promissory note made by the Company in favor of a Term B Lender, evidencing Term B Loans made by such Term B Lender, substantially in the form of Exhibit C-1. "Threshold Amount" means $15,000,000. "Total Australian Revolving Outstandings" means the aggregate Outstanding Amount of all Australian Revolving Loans. "Total Canadian Revolving Outstandings" means the aggregate Outstanding Amount of all Canadian Revolving Loans. 59 [Published CUSIP Number: ___] "Total Multicurrency Revolving Outstandings" means the aggregate Outstanding Amount of all Multicurrency Revolving Loans, Swing Line Loans and all L/C Obligations. "Total Outstandings" means the aggregate Outstanding Amount of all Loans and all L/C Obligations. "Total Revolving Credit Outstandings" means the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations. "Transactions" means, collectively, (a) the entering into of the Loan Documents and the funding on the Closing Date of Loans hereunder, (b) the entering into of the Convertible Note Documents and the Senior Note Documents and the issuance of the Convertible Notes and Senior Notes, (c) the repaying of certain outstanding Indebtedness (including, without limitation, Indebtedness under the Existing Credit Agreement and the Company's privately placed notes) of the Company and its Subsidiaries and the termination of any commitment with respect thereto and (d) all transactions related to the foregoing. "Treaty" has the meaning set forth in the definition of "Treaty State". "Treaty Lender" means a Lender which: (i) is treated as a resident of a Treaty State for the purposes of the Treaty; and (ii) does not carry on a business in the United Kingdom or Switzerland through a permanent establishment with which that Lender's participation in the Loan is effectively connected. "Treaty State" means (a) a jurisdiction having a double taxation agreement with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest and (b) a jurisdiction having a double taxation agreement (a "Treaty") with Switzerland which makes provision for full exemption (either at source upon payment of the interest or upon completion of a refund procedure) from tax imposed by Switzerland on interest (subject to the completion of any necessary procedural formalities). "TRICARE" means the United States Department of Defense health care program for service families including, but not limited to, TRICARE Prime, TRICARE Extra and TRICARE Standard, and any successor to or predecessor thereof. "Twenty Non-Bank Rule" means the rule pursuant to the Guidelines, in particular circular S-02.122.1 (4.99), circular S-02.122.2 (4.99), and circular S-02.128 (1.2000) of the Swiss Federal Tax Administration (or legislation and/or regulations addressing the same issues, which are in force at such time) according to which a Swiss issuer may not have, at any time, directly or indirectly (notably by way of assignment or sub-participation), (i) more than twenty (20) lenders other than Qualifying Swiss Banks in possession of written debt instruments (such as notes or money market claims) subject to variable conditions or (ii) more than twenty (20) creditors other than Qualifying Swiss Banks in relation to all outstanding loans or private placement without triggering Swiss Federal Withholding Tax on any interest payments and/or Swiss issuance stamp tax upon issuance, in each case in accordance with the meaning of the Guidelines. 60 [Published CUSIP Number: ___] "Type" means, with respect to a Loan, its character as a Base Rate Loan, a Eurocurrency Rate Loan or a CDOR Rate Loan. "UCC" means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, "UCC" means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority. "Unfunded Amount" has the meaning specified in Section 2.01(e)(ii). "Unfunded Pension Liability" means the excess of a Pension Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan's assets, determined in accordance with the assumptions used for funding that Pension Plan pursuant to Section 412 of the Code for the applicable plan year. "United States" and "U.S." mean the United States of America. "Unreimbursed Amount" means the Multicurrency Unreimbursed Amount and/or the Canadian Unreimbursed Amount, as the context may require. "U.S. Collateral Documents" means a collective reference to the U.S. Security and Pledge Agreement, the Multicurrency Mortgages and such other documents executed and delivered in connection with the attachment and perfection of the security interests granted to secure the Obligations. "U.S. Dollar" and "$" mean lawful money of the United States. "U.S. Prime Rate" means the rate of interest in effect for such day as publicly announced from time to time by the Multicurrency Administrative Agent as its "prime rate." Such "prime rate" is a rate set by the Multicurrency Administrative Agent based upon various factors including the Multicurrency Administrative Agent's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such "prime rate" announced by the Multicurrency Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change. "U.S. Security and Pledge Agreement" means the U.S. Security and Pledge Agreement dated as of the date hereof executed by the Multicurrency Loan Parties in favor of the Multicurrency Collateral Agent to secure the Obligations. "VAT" means value added tax as provided for in the Value Added Tax Act 1994 of the United Kingdom and any other tax of a similar nature. 61 [Published CUSIP Number: ___] "Vendor Financing" means the sale in the ordinary course of business by the Company or any of its Subsidiaries to De Lage Landen Financial Services, Inc. or any other Person that is not an Affiliate of the Company or any of its Subsidiaries of Customer Leases. 1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iii) the words "herein," "hereof" and "hereunder," and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. (b) In the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including;" the words "to" and "until" each mean "to but excluding;" and the word "through" means "to and including." (c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document. 1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial 62 [Published CUSIP Number: ___] ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. (b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Multicurrency Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Multicurrency Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. (c) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Company and its Subsidiaries or to the determination of any amount for the Company and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Company is required to consolidate pursuant to FASB Interpretation No. 46 -- Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein. 1.04 ROUNDING. Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). 1.05 EXCHANGE RATES; CURRENCY EQUIVALENTS. (a) The Multicurrency Administrative Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Foreign Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than U.S. 63 [Published CUSIP Number: ___] Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Multicurrency Administrative Agent. (b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in U.S. Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such U.S. Dollar amount (rounded to the nearest unit of such Alternative Currency, with a rounding up if there is no nearest unit), as determined by the Multicurrency Administrative Agent. 1.06 ADDITIONAL FOREIGN CURRENCIES. (a) The Company may from time to time request that Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those specifically referenced in the definition of Foreign Currency; provided that such requested currency is a lawful currency (other than U.S. Dollars) that is readily available and freely transferable and convertible into U.S. Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall be subject to the approval of the Multicurrency Administrative Agent and the Revolving Lenders and/or the Alternative Currency Lenders, as applicable; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Multicurrency Administrative Agent and each applicable L/C Issuer. (b) Any such request shall be made to the Multicurrency Administrative Agent not later than 11:00 a.m., 10 Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Multicurrency Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the applicable L/C Issuer, in its or their sole discretion). In the case of any such request pertaining to Eurocurrency Rate Loans, the Multicurrency Administrative Agent shall promptly notify each Revolving Lender thereof; and in the case of any such request pertaining to Letters of Credit, the Multicurrency Administrative Agent shall promptly notify each applicable L/C Issuer thereof. Each Revolving Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or applicable L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Multicurrency Administrative Agent, not later than 11:00 a.m., 10 Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency. (c) Any failure by a Revolving Lender or an L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Revolving Lender or such L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made by such Revolving Lender or Letters of Credit to be issued in such requested currency. If the Multicurrency Administrative Agent and all the Revolving Lenders consent to making Eurocurrency Rate Loans in such 64 [Published CUSIP Number: ___] requested currency, the Multicurrency Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be a Foreign Currency hereunder for purposes of any Revolving Borrowings of Eurocurrency Rate Loans; and if the Multicurrency Administrative Agent and each applicable L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Multicurrency Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be a Foreign Syndicated Currency hereunder for purposes of any Letter of Credit issuances. If the Multicurrency Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.06 from all Revolving Lenders or an L/C Issuer, as applicable, the Multicurrency Administrative Agent shall promptly so notify the Company. If one or more (but not all) Revolving Lenders consent to any request for an additional currency under this Section 1.06, then the Company shall have the right to request that such additional currency be deemed an Alternative Currency by providing written notice to the Multicurrency Administrative Agent (a "Request for a New Alternative Currency Facility"), which notice shall be delivered by the Multicurrency Administrative Agent to the Revolving Lenders that had consented to the original request for an additional currency. (d) In the event that sufficient Revolving Lenders consent to provide Alternative Currency Commitments in response to a Request for a New Alternative Currency Facility, upon execution of the applicable Alternative Currency Addendum and the other documents, instruments and agreements required pursuant to this Agreement and such Alternative Currency Addendum, the Alternative Currency Facility shall be established. Unless a Lender is providing an Alternative Currency Commitment with respect to any Alternative Currency Facility, consent of such Lender, all of the Lenders or the Required Lenders shall not be required to establish an Alternative Currency Facility. Upon the establishment of any Alternative Currency Facility under this Section 1.06(d), the relevant Borrower may, at its option and upon ten (10) Business Days prior written notice to the Multicurrency Administrative Agent, activate the Alternative Currency Commitments established under such Alternative Currency Facility, which notice shall specify the Alternative Currency Commitment which is being activated, the amount of such activation stated in U.S. Dollars and the requested date of activation. Such activation notice may be provided to the Multicurrency Administrative Agent at the time of the Request for a New Alternative Currency Facility in the event the Borrower desires to activate the Alternative Currency Commitment immediately upon establishment of the Alternative Currency Facility in which case no waiting period shall be operative. Upon activation of such Alternative Currency Commitment of any Alternative Currency Lender, (i) Alternative Currency Loans may be made under such Alternative Currency Facility, (ii) the amount of such Alternative Currency Lender's Revolving Commitment shall be immediately reduced by the amount of such Revolving Lender's new Alternative Currency Commitment, (iii) the Revolving Facility shall be immediately reduced by the aggregate amount of such Alternative Currency Commitments, (iv) the Applicable Revolving Credit Percentage of each Revolving Lender shall be recalculated by the Multicurrency Administrative Agent taking into effect the reduced Revolving Commitment of such Alternative Currency Lender, (v) the Revolving Lenders and the applicable Borrowers shall promptly make such payments to each other as the 65 [Published CUSIP Number: ___] Multicurrency Administrative Agent may direct to give effect to the adjusted Applicable Revolving Credit Percentages of the Revolving Lenders with respect to the outstanding Revolving Loans at the time of such adjustments and (vi) the Borrowers shall compensate each Revolving Lender for any loss, cost or expense incurred by such Revolving Lender in connection with the foregoing adjustment to its Applicable Revolving Credit Percentage and corresponding payments in accordance with the terms of Section 3.05. After activation of any Alternative Currency Commitment, the Foreign Borrower may from time to time thereafter deactivate such Alternative Currency Commitment upon ten (10) Business Days prior written notice to the Multicurrency Administrative Agent, specifying the Alternative Currency Commitment which is being deactivated, the amount of the Alternative Currency Commitment being deactivated stated in U.S. Dollars and the requested date of such deactivation. Upon deactivation of such Alternative Currency Commitment of any Alternative Currency Lender, (A) the amount of such Alternative Currency Lender's Revolving Commitment shall be immediately increased by the amount of such Lenders Alternative Currency Commitment deactivated, (B) the Revolving Commitments shall be immediately increased by the aggregate amount of such Alternative Currency Commitments deactivated, (C) the Applicable Revolving Credit Percentage of each Lender shall be recalculated by the Multicurrency Administrative Agent taking into effect the increased Revolving Commitments, (D) the Revolving Lenders and the applicable Borrowers shall promptly make such payments to each other as the Multicurrency Administrative Agent may direct to give effect to the adjusted Applicable Revolving Credit Percentages of the Revolving Lenders with respect to the outstanding Revolving Loans at the time of such adjustments and (E) the Borrowers shall compensate each Revolving Lender for any loss, cost or expense incurred by such Revolving Lender in connection with the foregoing adjustment to its Applicable Revolving Credit Percentage and corresponding payments in accordance with the terms of Section 3.05. The Multicurrency Administrative Agent shall, upon any activation or deactivation under this Section 1.06(d), distribute a revised Schedule 2.01 to all of the Lenders which shall indicate each Lender's Revolving Commitment and, if any, Alternative Currency Commitments, together with such Lender's Applicable Percentage of the Aggregate Commitments and Revolving Commitments, which new Schedule 2.01 shall automatically supersede any prior Schedule 2.01. Alternative Currency Commitments may be reactivated and deactivated from time to time pursuant to this Section 1.06(d). 1.07 CHANGE OF CURRENCY. (a) Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any 66 [Published CUSIP Number: ___] Revolving Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period. Each provision of this Agreement shall be subject to such reasonable changes of construction as the Multicurrency Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro. (b) Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Multicurrency Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency. 1.08 TIMES OF DAY. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). 1.09 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time. 1.10 DUTCH TERMS. In this Agreement, where it relates to a Dutch entity, a reference to: (a) a "necessary corporate action to authorize" where applicable, includes without limitation: (i) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and (ii) obtaining an unconditional positive advice (advies) from the competent works council(s); (b) a Lien includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijk zekerheidsrecht); i) 67 [Published CUSIP Number: ____] (c) a "winding-up", "administration" or "dissolution" includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden); (d) a "moratorium" includes surseance van betaling and "a moratorium is declared" or "occurs" includes surseance verleend; (e) any "step" or "procedure" taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990); (f) a "trustee in bankruptcy" includes a curator; (g) an "administrator" includes a bewindvoerder; and (h) an "attachment" includes a beslag. ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS 2.01 THE LOANS. (a) The Term B Borrowing. Subject to the terms and conditions set forth herein, each Term B Lender severally agrees to make a single loan to the Company in U.S. Dollars on the Closing Date in an amount not to exceed such Term B Lender's Term B Commitment. The Term B Borrowing shall consist of Term B Loans made simultaneously by the Term B Lenders in accordance with their respective Term B Commitments. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term B Loans may be Base Rate Loans or Eurocurrency Rate Loans as further provided herein. (b) The Multicurrency Revolving Borrowings. Subject to the terms and conditions set forth herein, each Multicurrency Revolving Lender severally agrees to make revolving loans (each such loan, a "Multicurrency Revolving Loan") to the Borrowers in one or more Syndicated Currencies from time to time, on any Business Day during the Multicurrency Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Multicurrency Revolving Lender's Multicurrency Revolving Commitment; provided, however, that after giving effect to any Multicurrency Revolving Borrowing, (i) the Total Multicurrency Revolving Outstandings shall not exceed the Multicurrency Facility, (ii) the aggregate Outstanding Amount of Multicurrency Revolving Loans of any Multicurrency Revolving Lender, plus such Multicurrency Revolving Lender's Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Multicurrency Revolving Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Multicurrency Revolving Lender's Multicurrency Revolving Commitment, (iii) the Total Revolving Credit Outstandings shall not exceed the Revolving Facility, (iv) the aggregate 68 [Published CUSIP Number: ____] Outstanding Amount of all Foreign Currency Loans made to the Borrowers shall not exceed the Foreign Currency Sublimit and (v) the Outstanding Amount of Multicurrency Revolving Loans denominated in Foreign Syndicated Currencies shall not exceed $40,000,000 (as such amount may be modified from time to time pursuant to Section 2.01(f)). Within the limits of the Multicurrency Revolving Commitments, and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.01(b), prepay under Section 2.05(a), and reborrow under this Section 2.01(b). Multicurrency Revolving Loans denominated in U.S. Dollars may be Base Rate Loans or Eurocurrency Rate Loans and Multicurrency Revolving Loans denominated in a Foreign Syndicated Currency may be Eurocurrency Rate Loans, in each case as further provided herein. All Borrowings of Multicurrency Revolving Loans made on the Closing Date shall be made as Base Rate Loans (except for Multicurrency Revolving Loans denominated in a Foreign Syndicated Currency, which shall be made on the Closing Date as Eurocurrency Rate Loans with an Interest Period of one month) and may not exceed $50,000,000. (c) Australian Revolving Loans. Subject to the terms and conditions set forth herein, each Australian Revolving Lender severally agrees to make revolving loans (each such loan, an "Australian Revolving Loan") to the Australian Borrower in Australian Dollars or in U.S. Dollars from time to time, on any Business Day during the Australian Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Australian Revolving Lender's Australian Revolving Commitment; provided, however, that after giving effect to any Australian Revolving Borrowing, (i) the Total Australian Revolving Outstandings shall not exceed the Australian Facility, (ii) the aggregate Outstanding Amount of Australian Revolving Loans of any Australian Revolving Lender shall not exceed such Australian Revolving Lender's Australian Revolving Commitment and (iii) the Total Revolving Credit Outstandings shall not exceed the Revolving Facility. Within the limits of each Australian Revolving Lender's Australian Revolving Commitment, and subject to the other terms and conditions hereof, the Australian Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Australian Revolving Loans may be Eurocurrency Rate Loans, as further provided herein; provided, however, all Borrowings of Australian Revolving Loans made on the Closing Date shall be made as Eurocurrency Rate Loans with an Interest Period of one month. The Australian Revolving Lenders will make the Australian Revolving Loans pursuant to this Section 2.01 in accordance with Part II of Schedule 2.01. (d) Canadian Revolving Loans. Subject to the terms and conditions set forth herein, each Canadian Revolving Lender severally agrees to make revolving loans (each such loan, a "Canadian Revolving Loan") to the Canadian Borrower in Canadian Dollars or in U.S. Dollars from time to time, on any Business Day during the Canadian Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Canadian Revolving Lender's Canadian Revolving Commitment; provided, however, that after giving effect to any Canadian Revolving Borrowing, (i) the Total Canadian Revolving Outstandings shall not exceed the Canadian Facility, (ii) the aggregate Outstanding Amount of Canadian Revolving Loans of any Canadian Revolving 69 [Published CUSIP Number: ____] Lender shall not exceed such Canadian Revolving Lender's Canadian Revolving Commitment and (iii) the Total Revolving Credit Outstandings shall not exceed the Revolving Facility. Within the limits of each Canadian Revolving Lender's Canadian Revolving Commitment, and subject to the other terms and conditions hereof, the Canadian Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Canadian Revolving Loans may be Base Rate Loans, Eurocurrency Rate Loans or CDOR Rate Loans, as further provided herein; provided, however, all Borrowings of Canadian Revolving Loans made on the Closing Date shall be made as Base Rate Loans. Notwithstanding any provision herein to the contrary, (A) Canadian Revolving Loans shall be denominated only in Canadian Dollars and U.S. Dollars and (B) all CDOR Rate Loans shall be denominated in Canadian Dollars. The Canadian Revolving Lenders will make the Canadian Revolving Loans pursuant to this Section 2.01 in accordance with Part III of Schedule 2.01. (e) Alternative Currency Borrowings. (i) Subject to the terms and conditions of this Agreement and the applicable Alternative Currency Addendum, from and including the later of the date of this Agreement and the date of execution of the applicable Alternative Currency Addendum and prior to the Maturity Date with respect to the Revolving Facility (unless an earlier termination date shall be specified in the applicable Alternative Currency Addendum), the applicable Alternative Currency Lenders severally agree, on the terms and conditions set forth in this Agreement and in the applicable Alternative Currency Addendum, to make Alternative Currency Loans under such Alternative Currency Addendum to the Borrower party to such Alternative Currency Addendum from time to time in the applicable Alternative Currency, in an amount not to exceed each such Alternative Currency Lender's applicable Alternative Currency Commitment; provided, however, that after giving effect to any Alternative Currency Loan, (i) the aggregate Outstanding Amount of all Foreign Currency Loans made to the Borrowers shall not exceed the Foreign Currency Sublimit and (ii) the aggregate Outstanding Amount of the Alternative Currency Loans for any specific Alternative Currency shall not exceed the maximum amount specified as the maximum amount for such Alternative Currency in the applicable Alternative Currency Addendum. Subject to the terms of this Agreement and the applicable Alternative Currency Addendum, the Borrowers may borrow, repay and reborrow Alternative Currency Loans at any time prior to the Maturity Date. (ii) If and to the extent any Alternative Currency Lender shall not make its pro rata portion of any Alternative Currency Loan available to the Multicurrency Administrative Agent, the Multicurrency Administrative Agent may (but shall not be obligated to) make such amount available to the relevant Borrower, and such Alternative Currency Lender agrees to pay to the Multicurrency Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date such amount is made available to such Borrower by the Multicurrency Administrative Agent until the date such 70 [Published CUSIP Number: ____] amount is repaid to the Multicurrency Administrative Agent, at a rate per annum equal to the Multicurrency Administrative Agent's cost of funds for such day for the first three days and, thereafter, the interest rate applicable to the relevant Alternative Currency Loan. If for any reason any applicable Alternative Currency Lender fails to fund its Applicable Percentage of any Alternative Currency Loan at the time required under this Agreement and the applicable Alternative Currency Addendum (the amount of such unfunded Applicable Percentage being hereinafter referred to as the "Unfunded Amount"), the Multicurrency Administrative Agent shall be entitled to receive, retain and apply against such Unfunded Amount the principal and interest otherwise payable to such Alternative Currency Lender under this Agreement until the Multicurrency Administrative Agent receives such Unfunded Amount from such Alternative Currency Lender or such Unfunded Amount is otherwise fully satisfied. In addition to the foregoing, if for any reason any Alternative Currency Lender fails to fund its Applicable Percentage of any Alternative Currency Loan at the time required under this Agreement and the applicable Alternative Currency Addendum, such Alternative Currency Lender shall be deemed, at the option of the Multicurrency Administrative Agent, to have unconditionally and irrevocably purchased from the Multicurrency Administrative Agent, without recourse or warranty, an undivided interest in and participation in the applicable Alternative Currency Loan in the amount of such Alternative Currency Lender's Applicable Percentage thereof under this Agreement and the applicable Alternative Currency Addendum, and such interest and such participation may be recovered from such Alternative Currency Lender together with interest thereon at a rate per annum equal to the Multicurrency Administrative Agent's cost of funds for such day for the first three days and, thereafter, the interest rate applicable to the relevant Loan during the period commencing on the date of demand by the Multicurrency Administrative Agent and ending on the date such funding shortfall is fully satisfied. (iii) Except as otherwise required by applicable law, in no event shall the Multicurrency Administrative Agent or Alternative Currency Lenders have the right to accelerate the Alternative Currency Loans outstanding under any Alternative Currency Addendum or to terminate their Alternative Currency Commitments (if any) thereunder to make Alternative Currency Loans prior to the stated termination date in respect thereof, except that such Multicurrency Administrative Agent and Alternative Currency Lenders shall, in each case, have such rights upon an acceleration of the Loans and a termination of the Commitments pursuant to Section 8.02. (f) Conversion of Commitments. The Company shall have the right, at the expense of the Company, to request one or more Revolving Lenders to convert a Multicurrency Revolving Commitment, Canadian Revolving Commitment or Australian Revolving Commitment into another form of Revolving Commitment (a "Commitment Conversion Request"). Upon the consent of any such Revolving Lender to a Commitment Conversion Request, the Multicurrency Administrative Agent and the 71 [Published CUSIP Number: ____] Principal L/C Issuer, and without the need for consent from any other Administrative Agent or Lender, such Revolving Lender's Multicurrency Revolving Commitment, Canadian Revolving Commitment or Australian Revolving Commitment, as applicable and in an amount mutually agreed upon by the Company, such Revolving Lender, the Multicurrency Administrative Agent and the Principal L/C Issuer, shall be converted to a Multicurrency Revolving Commitment, Canadian Revolving Commitment or Australian Revolving Commitment, as applicable. In connection with any such conversion, (i) any limitation on the aggregate amount of Multicurrency Revolving Commitments, Canadian Revolving Commitments and Australian Revolving Commitments shall automatically be increased or decreased, as applicable, to account for such conversion without any the consent of the Administrative Agents or Lenders, so long as, after giving effect thereto, the aggregate amount of Multicurrency Revolving Commitments, Canadian Revolving Commitments, Australian Revolving Commitments and Alternative Currency Commitments does not exceed the Foreign Currency Sublimit, (ii) the outstanding Credit Extensions of the Revolving Lenders shall be adjusted (through payments from or to each such Revolving Lender that is impacted) so that the converting Revolving Lender's Applicable Percentage of the outstanding Multicurrency Revolving Loans, Canadian Revolving Loans and Australian Revolving Loans correctly reflects the new amounts of its Revolving Commitments and (iii) the Company shall pay all costs associated with the foregoing in accordance with the terms of Section 3.05. 2.02 Borrowings, Conversions and Continuations of Loans. (a) (i) With respect to Multicurrency Revolving Loans and the Term B Loan, each Borrowing, each conversion of Term B Loans or Multicurrency Revolving Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Company's irrevocable notice to the Multicurrency Administrative Agent, which may be given by telephone. Each such notice must be received by the Multicurrency Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans denominated in U.S. Dollars or of any conversion of Eurocurrency Rate Loans denominated in U.S. Dollars to Base Rate Loans, (B) four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans or Base Rate Loans denominated in Foreign Currencies, and (C) on the requested date of any Borrowing of Base Rate Loans denominated in U.S. Dollars; provided, however, that if the Company wishes to request Eurocurrency Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of "Interest Period", the applicable notice must be received by the Multicurrency Administrative Agent not later than 11:00 a.m. (1) four Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in U.S. Dollars, or (2) five Business Days (or six Business days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans or Base Rate Loans denominated in Foreign Currencies, whereupon the Multicurrency Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested 72 [Published CUSIP Number: ____] Interest Period is acceptable to all of them. Not later than 11:00 a.m. (x) three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in U.S. Dollars, or (y) four Business Days (or five Business days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans or Base Rate Loan denominated in Foreign Currencies, the Multicurrency Administrative Agent shall notify the Company (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each telephonic notice by the Company pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Multicurrency Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Signatory Officer of the Company. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; provided that any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans by the Swiss Borrower may be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans denominated in U.S. Dollars shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. (ii) With respect to Australian Revolving Loans, each Borrowing and each continuation of Eurocurrency Rate Loans shall be made upon the Australian Borrower's irrevocable notice to the Australian Administrative Agent, which may be given by telephone. Each such notice must be received by the Australian Administrative Agent not later than 11:00 a.m. (Sydney time) (A) three Business Days prior to the requested date of any Borrowing of, or continuation of, Eurocurrency Rate Loans that are Australian Revolving Loans denominated in Australian Dollars and (B) on the requested date of any Australian Revolving Borrowing of Base Rate Loans. Each telephonic notice by the Company pursuant to this Section 2.02(a)(ii) must be confirmed promptly by delivery to the Australian Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Signatory Officer of the Company. Each Borrowing of or continuation of Eurocurrency Rate Loans that are Australian Revolving Loans shall be in a principal amount of A$5,000,000 or a whole multiple of A$1,000,000 in excess thereof. (iii) With respect to Canadian Revolving Loans, each Borrowing, each conversion of Canadian Revolving Loans from one Type to the other, each conversion of Base Rate Loans to CDOR Rate Loans, and each continuation of Eurocurrency Rate Loans or CDOR Rate Loans shall be made upon the applicable Borrower's irrevocable notice to the Multicurrency Administrative Agent, which may be given by telephone. Each such notice must be received by the Multicurrency Administrative Agent not later than (A)11:00 a.m. three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of, Eurocurrency Rate Loans that are Canadian Revolving Loans denominated in U.S. Dollars, or of any conversion of Eurocurrency Rate Loans that are Canadian Revolving Loans denominated in U.S. Dollars to Base Rate 73 [Published CUSIP Number: ____] Loans denominated in U.S. Dollars, (B) 12:00 p.m. three Business Days prior to the requested date of any Borrowing of, or continuation of, any CDOR Rate Loan or conversion of any Base Rate Loan to a CDOR Rate Loan, (C) 10:00 a.m. on the requested date of a Canadian Revolving Borrowing of Base Rate Loans denominated in Canadian Dollars and (D) 11:00 a.m. one Business Day prior to the requested date of any Canadian Revolving Borrowing of Base Rate Loans denominated in U.S. Dollars. Each telephonic notice by the applicable Borrower pursuant to this Section 2.02(a)(iii) must be confirmed promptly by delivery to the Multicurrency Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Signatory Officer of the applicable Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or CDOR Rate Loans that are Canadian Revolving Loans denominated in Canadian Dollars shall be in a principal amount of CAN$5,000,000 or a whole multiple of CAN$1,000,000 in excess thereof, and each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans that are Canadian Revolving Loans denominated in U.S. Dollars shall be in a principal amount of US$5,000,000 or a whole multiple of US$1,000,000 in excess thereof. Each Borrowing of, or conversion to, Base Rate Loans that are Canadian Revolving Loans denominated in Canadian Dollars shall be in a principal amount of CAN$1,000,000 or a whole multiple of CAN$500,000 in excess thereof, and each Borrowing of, conversion to or continuation of Base Rate Loans that are Canadian Revolving Loans denominated in U.S. Dollars shall be in a principal amount of US$1,000,000 or a whole multiple of US$500,000 in excess thereof. Each Borrowing of, conversion to or continuation of CDOR Rate Loans shall be in a principal face amount of CAN$5,000,000 or a whole multiple of CAN$1,000,000 in excess thereof. If the date upon which a Base Rate Loan that is a Canadian Revolving Loan is to be converted to a CDOR Rate Loan is not a Business Day, then such conversion shall be made on the next succeeding Business Day and during the period from such last day of a CDOR Period and during the period to such succeeding Business Day such Canadian Revolving Loan shall bear interest as if it were a Base Rate Loan. (b) Each Committed Loan Notice (whether telephonic or written) shall specify (i) the applicable Borrower, (ii) whether the applicable Borrower is requesting a Multicurrency Revolving Borrowing, an Australian Revolving Borrowing, a Canadian Revolving Borrowing, a Term B Loan Borrowing, a conversion of the Term B Loan or the applicable Revolving Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans or CDOR Rate Loans, (iii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iv) the principal amount of Loans to be borrowed, converted or continued, (v) the Type of Loans to be borrowed or to which existing Loans are to be converted, (vi) the currency of the Loans to be borrowed, (vii) with respect to any Canadian Revolving Borrowing, whether such Canadian Revolving Borrowing shall be comprised of CDOR Rate Loans and the CDOR Period therefor and (viii) if applicable, the duration of the Interest Period with respect thereto. If the Company, the Australian Borrower or the Canadian Borrower fails to specify a currency in a Committed Loan Notice, then the Loans so requested shall be 74 [Published CUSIP Number: ____] made in U.S. Dollars to the Company, Australian Dollars to the Australian Borrower or Canadian Dollars to the Canadian Borrower, as applicable. If a Borrower fails to specify a Type of Loan in a Committed Loan Notice or if a Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans; provided, however, that in the case of a failure to timely request a continuation of Loans denominated in a Foreign Syndicated Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one month. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans or last day of the CDOR Period then in effect with respect to the CDOR Rate Loan. If a Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency. If a Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency. If the Canadian Borrower requests a CDOR Rate Loan, but fails to specify a CDOR Period, it will be deemed to have specified a CDOR Period of one month. If the Canadian Borrower request that a CDOR Rate Loan be continued at the end of the CDOR Period with respect thereto, such CDOR Rate Loan shall roll over into the new CDOR Period and shall be continued in the amount outstanding at the end of such CDOR Period, without any repayment and readvance of such CDOR Rate Loan. (c) Following receipt of a Committed Loan Notice, the applicable Administrative Agent shall promptly notify each applicable Lender of the amount (and currency) of its Applicable Percentage under the applicable Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, such Administrative Agent shall notify each applicable Lender of the details of any automatic conversion to Base Rate Loans or continuation of Multicurrency Revolving Loans denominated in a Foreign Syndicated Currency, as applicable, in each case as described in the preceding subsection. In the case of any Multicurrency Revolving Borrowing, each Multicurrency Revolving Lender shall make the amount of its Loan available to the Multicurrency Administrative Agent in immediately available funds at the Multicurrency Administrative Agent's Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. In the case of any Australian Revolving Borrowing, each Australian Revolving Lender shall make the amount of its Australian Revolving Loan available to the Australian Administrative Agent in immediately available funds at the Australian Administrative Agent's Office for the applicable currency not later than 11:00 a.m. (Sydney time), on the Business Day specified in the applicable Committed Loan Notice. In the case of any Canadian Revolving Borrowing, each Canadian Revolving Lender shall make the amount 75 [Published CUSIP Number: ____] of its Canadian Revolving Loan available to the Canadian Administrative Agent in immediately available funds at the Canadian Administrative Agent's Office for the applicable currency not later than 1:00 p.m. (Toronto time), on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the applicable Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the applicable Administrative Agent either by (i) crediting the account of the applicable Borrower on the books of National City Bank (including National City Bank, Canada Branch, as applicable) with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) such Administrative Agent by the applicable Borrower; provided, however, that if, on the date of a Borrowing of Multicurrency Revolving Loans, there are Multicurrency L/C Borrowings outstanding, then the proceeds of such Multicurrency Revolving Borrowing, first, shall be applied to the payment in full of any such Multicurrency L/C Borrowings, and second, shall be made available to the Company as provided above. (d) Except as otherwise provided herein, (i) a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan and (ii) a CDOR Rate Loan may be continued or converted only on the last day of a CDOR Period for such CDOR Rate Loan. During the existence of a Default or Event of Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans (whether in U.S. Dollars or any Foreign Currency) or CDOR Rate Loan without the consent of (A) with respect to Term B Loans, the Required Term B Lenders, (B) with respect to Loans denominated in Syndicated Foreign Currencies, the Required Revolving Lenders, (C) with respect to Loans denominated in Australian Dollars, the Required Australian Revolving Lenders, (D) with respect to Loans denominated in Canadian Dollars, the Required Canadian Revolving Lenders and (E) with respect to Loans denominated in an Alternative Currency, the Required Alternative Currency Lenders with respect to the Alternative Currency Facility under which such Loans were made. During the existence of an Event of Default, (1) the Required Revolving Lenders, the Required Australian Revolving Lenders, the Required Canadian Revolving Lenders or the Required Alternative Currency Lenders, as applicable, may demand that any or all of the then outstanding Eurocurrency Rate Loans denominated in a Foreign Syndicated Currency, Australian Dollars or an Alternative Currency, respectively, be prepaid, or redenominated into U.S. Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto and (2) the Required Canadian Revolving Lenders may demand any or all of the then outstanding Eurocurrency Rate Loans denominated in U.S. Dollars be redenominated into Canadian Dollars. (e) The applicable Administrative Agent shall promptly notify the applicable Borrower and the applicable Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans or to any CDOR Period for any CDOR Rate Loan upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the applicable Administrative Agent shall notify the applicable Borrower and the applicable 76 [Published CUSIP Number: ____] Lenders of any change in prime rate as determined by the applicable Administrative Agent used in determining the Base Rate promptly following the public announcement of such change. (f) After giving effect to all Term B Borrowings, all conversions of Term B Loans from one Type to the other, and all continuations of Term B Loans as the same Type, there shall not be more than 5 Interest Periods in effect in respect of the Term B Facility. After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not be more than 15 Interest Periods in effect in respect of the Revolving Facility. (g) Each of the Australian Administrative Agent, Canadian Administrative Agent and L/C Issuers (other than the Principal L/C Issuer) shall provide the Multicurrency Administrative Agent with monthly reports detailing the outstanding Australian Revolving Loans, Canadian Revolving Loans and Letters of Credit, as applicable. 2.03 Letters of Credit. (a) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) each applicable Multicurrency L/C Issuer agrees, in reliance upon the agreements of the Multicurrency Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Multicurrency Letters of Credit denominated in U.S. Dollars or in one or more Syndicated Foreign Currencies for the account of the Company or its Subsidiaries, and to amend or extend Multicurrency Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Multicurrency Letters of Credit; and (B) the Multicurrency Revolving Lenders severally agree to participate in Multicurrency Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any Multicurrency L/C Credit Extension with respect to any Multicurrency Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Multicurrency Facility, (y) the aggregate Outstanding Amount of the Revolving Loans of any Multicurrency Revolving Lender, plus such Multicurrency Revolving Lender's Applicable Revolving Credit Percentage of the Outstanding Amount of all Multicurrency L/C Obligations, plus such Lender's Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Revolving Commitment, and (z) the Outstanding Amount of the Multicurrency L/C Obligations shall not exceed the Multicurrency Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Multicurrency Letter of Credit shall be deemed to be a representation by the Company that the Multicurrency L/C Credit Extension so 77 [Published CUSIP Number: ____] requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Company's ability to obtain Multicurrency Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Multicurrency Letters of Credit to replace Multicurrency Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof. (ii) Subject to the terms and conditions set forth herein, (A) each applicable Canadian L/C Issuer agrees, in reliance upon the agreements of the Canadian Revolving Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Canadian Letters of Credit denominated in Canadian Dollars for the account of the Canadian Borrower or any Subsidiary organized in Canada, and to amend or extend Canadian Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Canadian Letters of Credit; and (B) the Canadian Revolving Lenders severally agree to participate in Canadian Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any Canadian L/C Credit Extension with respect to any Canadian Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Facility, (y) the aggregate Outstanding Amount of the Canadian Revolving Loans of any Canadian Revolving Lender, plus such Canadian Revolving Lender's Applicable Percentage of the Outstanding Amount of all Canadian L/C Obligations shall not exceed such Lender's Canadian Revolving Commitment, and (z) the Outstanding Amount of the Canadian L/C Obligations shall not exceed the Canadian Letter of Credit Sublimit. Each request by the Canadian Borrower for the issuance or amendment of a Canadian Letter of Credit shall be deemed to be a representation by the Canadian Borrower that the Canadian L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Canadian Borrower's ability to obtain Canadian Letters of Credit shall be fully revolving, and accordingly the Canadian Borrower may, during the foregoing period, obtain Canadian Letters of Credit to replace Canadian Letters of Credit that have expired or that have been drawn upon and reimbursed. (iii) No L/C Issuer shall issue any Letter of Credit if: (A) subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Multicurrency Revolving Lenders or the Required Canadian Revolving Lenders, as applicable, have approved such expiry date; or 78 [Published CUSIP Number: ____] (B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Multicurrency Revolving Lenders or the Canadian Revolving Lenders, as applicable, have approved such expiry date. (iv) No L/C Issuer shall be under any obligation to issue any Letter of Credit if: (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it; (B) except as otherwise agreed by the Multicurrency Administrative Agent or the Canadian Administrative Agent, as applicable, and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $35,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit; (C) except as otherwise agreed by (x) with respect to Multicurrency Letters of Credit, the Multicurrency Administrative Agent and such L/C Issuer, such Multicurrency Letter of Credit is to be denominated in a currency other than U.S. Dollars or a Foreign Syndicated Currency and (y) with respect to Canadian Letters of Credit, the Canadian Administrative Agent and such Canadian L/C Issuer, such Canadian Letter of Credit is to be denominated in a currency other than Canadian Dollars; (D) such L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency; or (E) a default of any Multicurrency Revolving Lender's or Canadian Revolving Lender's obligations, as applicable, to fund under Section 2.03(c) exists or any Multicurrency Revolving Lender or Canadian Revolving Lender, as applicable, is at such time a Defaulting Lender hereunder, unless such L/C Issuer has entered into satisfactory 79 [Published CUSIP Number: ____] arrangements with the applicable Borrower or such Multicurrency Revolving Lender or Canadian Revolving Lender, as applicable, to eliminate such L/C Issuer's risk with respect to such Revolving Lender. (v) No L/C Issuer shall amend a Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof. (vi) Each L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit. (vii) Each Multicurrency L/C Issuer shall act on behalf of the Multicurrency Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith. Each Canadian L/C Issuer shall act on behalf of the Canadian Revolving Lenders with respect to any Canadian Letters of Credit issued by it and the documents associated therewith. Each L/C Issuer shall have all of the benefits and immunities (A) provided to the Multicurrency Administrative Agent or Canadian Administrative Agent, as applicable, in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term "Multicurrency Administrative Agent" or "Canadian Administrative Agent" as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to an L/C Issuer. (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the applicable L/C Issuer (with a copy to the Multicurrency Administrative Agent or Canadian Administrative Agent, as applicable) in the form of a Letter of Credit Application, appropriately completed and signed by a Signatory Officer of the applicable Borrower. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Multicurrency Administrative Agent or Canadian Administrative Agent, as applicable, not later than 11:00 a.m. at least two Business Days (or such later date and time as the Multicurrency Administrative Agent or the Canadian Administrative, as applicable, and the applicable L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which 80 [Published CUSIP Number: ____] shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the applicable L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the applicable L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the applicable L/C Issuer may require. Additionally, the applicable Borrower shall furnish to the applicable L/C Issuer and the Multicurrency Administrative Agent or Canadian Administrative Agent, as applicable, such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the applicable L/C Issuer or the applicable Administrative Agent may require. (ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the applicable Administrative Agent (by telephone or in writing) that the applicable Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such L/C Issuer will provide the applicable Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice from any Multicurrency Revolving Lender or Canadian Revolving Lender, as applicable, the applicable Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer's usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Multicurrency Revolving Lender or Canadian Revolving Lender, as applicable, shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to (A) with respect to a Multicurrency Letter of Credit, the product of such Multicurrency Revolving Lender's Applicable Revolving Credit Percentage times the amount of such Letter of Credit and (B) with respect to a Canadian Letter of Credit, the product of such Canadian Revolving Lender's Applicable Revolving Credit Percentage times the amount of such Letter of Credit. (iii) If the applicable Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an "Auto-Extension Letter of Credit"); provided that any such 81 [Published CUSIP Number: ____] Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the "Non-Extension Notice Date") in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the applicable Borrower shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the applicable Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall not permit any such extension on the Non-Extension Notice Date if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Extension Notice Date (1) from the applicable Administrative Agent that the Required Multicurrency Revolving Lenders or the Required Canadian Revolving Lenders, as applicable, have elected not to permit such extension and directing such L/C Issuer not to permit such extension or (2) from the Multicurrency Administrative Agent, the Canadian Administrative Agent, any Multicurrency Revolving Lender, any Canadian Revolving Lender or the applicable Borrower that one or more of the applicable conditions specified in Section 4.02. (iv) If the applicable Borrower so requests in any applicable Letter of Credit Application, the directing such L/C Issuer not to permit such extension L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an "Auto-Reinstatement Letter of Credit"). Unless otherwise directed by the directing such L/C Issuer not to permit such extension L/C Issuer, the applicable Borrower shall not be required to make a specific request to such L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Multicurrency Revolving Lenders or the Canadian Revolving Lenders, as applicable, shall be deemed to have authorized (but may not require) such L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the applicable L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the "Non-Reinstatement Deadline"), such L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is five Business Days before the Non-Reinstatement Deadline (A) from 82 [Published CUSIP Number: ____] the applicable Administrative Agent that the Required Multicurrency Revolving Lenders or the Required Canadian Revolving Lenders, as applicable, have elected not to permit such reinstatement or (B) from the Multicurrency Administrative Agent, the Canadian Administrative Agent, any Revolving Lender or the applicable Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement. (v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the applicable Borrower, the Multicurrency Administrative Agent or the Canadian Administrative Agent, as applicable, and the Principal L/C Issuer a true and complete copy of such Letter of Credit or amendment. (c) Drawings and Reimbursements; Funding of Participations. (i) (A) Upon receipt from the beneficiary of any Multicurrency Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Company and the Multicurrency Administrative Agent thereof. In the case of a Letter of Credit denominated in a Foreign Syndicated Currency, the Company shall reimburse the applicable L/C Issuer in such Foreign Syndicated Currency, unless in the absence of any such requirement for reimbursement in U.S. Dollars, the Company shall have notified such L/C Issuer promptly following receipt of the notice of drawing that the Company will reimburse such L/C Issuer in U.S. Dollars. In the case of any such reimbursement in U.S. Dollars of a drawing under a Letter of Credit denominated in a Foreign Syndicated Currency, the applicable L/C Issuer shall notify the Company of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. on the date of any payment by an L/C Issuer under a Letter of Credit to be reimbursed in U.S. Dollars, or the Applicable Time on the date of any payment by an L/C Issuer under a Letter of Credit to be reimbursed in a Foreign Syndicated Currency (each such date, an "Multicurrency Honor Date"), the Company shall reimburse such L/C Issuer through the Multicurrency Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. If the Company fails to so reimburse such L/C Issuer by such time, the Multicurrency Administrative Agent shall promptly notify each Multicurrency Revolving Lender of the Multicurrency Honor Date, the amount of the unreimbursed drawing (expressed in U.S. Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in a Foreign Syndicated Currency) (the "Multicurrency Unreimbursed Amount"), and the amount of such Multicurrency Revolving Lender's Applicable Revolving Credit Percentage thereof. In such event, the Company shall be deemed to have requested a Revolving Borrowing of Base Rate Loans to be disbursed on the Multicurrency Honor Date in an amount 83 [Published CUSIP Number: ____] equal to the Multicurrency Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice), including the condition that no Default shall exist or result from such Credit Extension. Any notice given by an L/C Issuer or the Multicurrency Administrative Agent pursuant to this Section 2.03(c)(i)(A) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. (B) Upon receipt from the beneficiary of any Canadian Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Canadian Borrower and the Canadian Administrative Agent thereof. The Canadian Borrower shall reimburse the Canadian L/C Issuer in Canadian Dollars, unless in the absence of any such requirement for reimbursement in U.S. Dollars, the Canadian Borrower shall have notified the Canadian L/C Issuer promptly following receipt of the notice of drawing that the Canadian Borrower will reimburse the Canadian L/C Issuer in U.S. Dollars. In the case of any such reimbursement in U.S. Dollars of a drawing under a Letter of Credit denominated in Canadian Dollars, the Canadian L/C Issuer shall notify the Canadian Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 11:00 a.m. (Toronto time) on the date of any payment by the Canadian L/C Issuer under a Canadian Letter of Credit to be reimbursed in U.S. Dollars, or the Applicable Time on the date of any payment by the Canadian L/C Issuer under a Canadian Letter of Credit to be reimbursed in Canadian Dollars (each such date, an "Canadian Honor Date"), the Canadian Borrower shall reimburse the Canadian L/C Issuer through the Canadian Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. If the Canadian Borrower fails to so reimburse the Canadian L/C Issuer by such time, the Canadian Administrative Agent shall promptly notify each Canadian Revolving Lender of the Canadian Honor Date, the amount of the unreimbursed drawing (the "Canadian Unreimbursed Amount"), and the amount of such Canadian Revolving Lender's Applicable Revolving Credit Percentage thereof. In such event, the Canadian Borrower shall be deemed to have requested a Canadian Revolving Borrowing of Base Rate Loans denominated in Canadian Dollars to be disbursed on the Canadian Honor Date in an amount equal to the Canadian Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans denominated in Canadian Dollars, but subject to the amount of the unutilized portion of the Revolving Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice), including the condition that no Default shall exist or result from such Credit Extension. Any notice given by the Canadian L/C Issuer or the Canadian Administrative Agent pursuant to this Section 2.03(c)(i)(B) may be given by telephone if immediately confirmed in writing; provided that the lack 84 [Published CUSIP Number: ____] of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice. (ii) (A) Each Multicurrency Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i)(A) make funds available to the Multicurrency Administrative Agent for the account of the applicable L/C Issuer, in U.S. Dollars, at the Multicurrency Administrative Agent's Office for U.S. Dollar-denominated payments in an amount equal to its Applicable Percentage of the Multicurrency Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Multicurrency Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii)(A), each Multicurrency Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company in such amount. The Multicurrency Administrative Agent shall remit the funds so received to the applicable L/C Issuer in U.S. Dollars. (B) Each Canadian Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i)(B) make funds available to the Canadian Administrative Agent for the account of the Canadian L/C Issuer, in Canadian Dollars, at the Canadian Administrative Agent's Office for Canadian Dollar-denominated payments in an amount equal to its Applicable Percentage of the Canadian Unreimbursed Amount not later than 1:00 p.m. (Toronto time) on the Business Day specified in such notice by the Canadian Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii)(B), each Canadian Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Canadian Borrower in such amount. The Canadian Administrative Agent shall remit the funds so received to the Canadian L/C Issuer in Canadian Dollars. (iii) (A) With respect to any Multicurrency Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Company shall be deemed to have incurred from the applicable L/C Issuer a Multicurrency L/C Borrowing in the amount of the Multicurrency Unreimbursed Amount that is not so refinanced, which Multicurrency L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Multicurrency Revolving Lender's payment to the Multicurrency Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii)(A) shall be deemed payment in respect of its participation in such Multicurrency L/C Borrowing and shall constitute a Multicurrency L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03. (B) With respect to any Canadian Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Canadian Borrower shall be deemed to have incurred from the Canadian L/C Issuer a 85 [Published CUSIP Number: ____] Canadian L/C Borrowing in the amount of the Canadian Unreimbursed Amount that is not so refinanced, which Canadian L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Canadian Revolving Lender's payment to the Canadian Administrative Agent for the account of the Canadian L/C Issuer pursuant to Section 2.03(c)(ii)(B) shall be deemed payment in respect of its participation in such Canadian L/C Borrowing and shall constitute a Canadian L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03. (iv) Until each Multicurrency Revolving Lender or Canadian Revolving Lender, as applicable, funds its Multicurrency Revolving Loan, Canadian Revolving Loan, Multicurrency L/C Advance or Canadian L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender's Applicable Revolving Credit Percentage of such amount shall be solely for the account of such L/C Issuer. (v) Each applicable Revolving Lender's obligation to make Revolving Loans or L/C Advances to reimburse L/C Issuers for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any L/C Issuer, the Company, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each applicable Revolving Lender's obligation to make Revolving Loans (but not such Revolving Lender's obligation to make L/C Advances) pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Company of a Committed Loan Notice ). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein. (vi) If any applicable Revolving Lender fails to make available to the applicable Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender (acting through the applicable Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender's Revolving Loan 86 [Published CUSIP Number: ____] included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any applicable Revolving Lender (through the applicable Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error. (d) Repayment of Participations. (i) At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Multicurrency Revolving Lender or Canadian Revolving Lender, as applicable, such Lender's L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Multicurrency Administrative Agent or the Canadian Administrative Agent, as applicable, receives for the account of such L/C Issuer any payment in respect of the related Multicurrency Unreimbursed Amount or Canadian Unreimbursed Amount or interest thereon (whether directly from the Company or otherwise, including proceeds of Cash Collateral applied thereto by the Multicurrency Administrative Agent or Canadian Administrative Agent, as applicable), the applicable Administrative Agent will distribute to such Lender its Applicable Revolving Credit Percentage thereof in the same funds as those received by the applicable Administrative Agent. (ii) If any payment received by the applicable Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Multicurrency Revolving Lender or Canadian Revolving Lender, as applicable, shall pay to the applicable Administrative Agent for the account of such L/C Issuer its Applicable Revolving Credit Percentage thereof on demand of the applicable Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Multicurrency Revolving Lenders and the Canadian Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement. (e) Obligations Absolute. The obligation of the applicable Borrower to reimburse the L/C Issuers for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following: (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document; (ii) the existence of any claim, counterclaim, setoff, defense or other right that the Company or any Subsidiary may have at any time against any 87 [Published CUSIP Number: ____] beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction; (iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit; or (iv) any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or (v) any adverse change in the relevant exchange rates or in the availability of the relevant Foreign Syndicated Currency or Canadian Dollars to the Company or any Subsidiary or in the relevant currency markets generally; or (vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company or any Subsidiary. The applicable Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the applicable Borrower's instructions or other irregularity, the applicable Borrower will immediately notify the applicable L/C Issuer. The Company and the applicable Borrower shall be conclusively deemed to have waived any such claim against such L/C Issuer and its correspondents unless such notice is given as aforesaid. (f) Role of L/C Issuer. Each Lender, the Company and the Canadian Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Multicurrency Administrative Agent, the Canadian Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of an L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at 88 [Published CUSIP Number: ____] the request or with the approval of the Multicurrency Revolving Lenders, the Canadian Revolving Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Company hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the applicable Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Multicurrency Administrative Agent, the Canadian Administrative Agent any of their respective Related Parties nor any correspondent, participant or assignee of an L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the applicable Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the applicable Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the applicable Borrower which the applicable Borrower proves were caused by such L/C Issuer's willful misconduct or gross negligence or such L/C Issuer's willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, unless it receives from the Company any notice or information to the contrary, and each such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. (g) Cash Collateral. (i) Upon the request of the applicable Administrative Agent, if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the applicable Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. (ii) In addition, if (A) the Multicurrency Administrative Agent notifies the Company at any time that the Outstanding Amount of all Multicurrency L/C Obligations at such time exceeds the Multicurrency Letter of Credit Sublimit then in effect or (B) the Canadian Administrative Agent notifies the Canadian Borrower at any time that the Outstanding Amount of all Canadian L/C Obligations at such time exceeds the Canadian Letter of Credit Sublimit then in effect, then, in each case, within two Business Days after receipt of such notice, the applicable Borrower shall Cash Collateralize the applicable L/C Obligations in an amount equal to the amount by which the Outstanding Amount (x) of the Multicurrency L/C Obligations exceeds the Multicurrency Letter of Credit 89 [Published CUSIP Number: ____] Sublimit or (y) of the Canadian L/C Obligations exceeds the Canadian Letter of Credit Sublimit, as applicable. (iii) The applicable Administrative Agent may, at any time and from time to time after the initial deposit of Cash Collateral in accordance with the terms of this Section 2.03(g) or Sections 2.05 or 8.02(c), request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations. (iv) Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03, Section 2.05 and Section 8.02(c), "Cash Collateralize" means to pledge and deposit with or deliver to the applicable Administrative Agent, for the benefit of the L/C Issuers and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to the applicable Administrative Agent and each applicable L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. The applicable Borrower hereby grants to the applicable Collateral Agent, for the benefit of the Administrative Agents, L/C Issuers and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at the Multicurrency Collateral Agent or Canadian Collateral Agent, as applicable. If at any time the applicable Collateral Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than such Collateral Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations required to be Cash Collateralized under the terms of this Agreement, the applicable Borrower will, forthwith upon demand by the applicable Collateral Agent, pay to the applicable Collateral Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the applicable Collateral Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the applicable L/C Issuer. (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable L/C Issuer and the applicable Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit. 90 [Published CUSIP Number: ____] (i) Letter of Credit Fees. The Company shall pay to the Multicurrency Administrative Agent for the account of each Multicurrency Revolving Lender in accordance with its Applicable Revolving Credit Percentage, in U.S. Dollars, a Letter of Credit fee (the "Multicurrency Letter of Credit Fee") (i) for each commercial Letter of Credit equal to 1/8th of 1% per annum times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit and (ii) for each standby Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit; provided, however, the Multicurrency Letter of Credit Fee payable with respect to each Letter of Credit shall be in a minimum amount of $500 per annum. The Canadian Borrower shall pay to the Canadian Administrative Agent for the account of each Canadian Revolving Lender in accordance with its Applicable Revolving Credit Percentage, in Canadian Dollars, a Letter of Credit fee (the "Canadian Letter of Credit Fee") (i) for each commercial Letter of Credit equal to 1/8th of 1% per annum times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit and (ii) for each standby Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit; provided, however, the Canadian Letter of Credit Fee payable with respect to each Letter of Credit shall be in a minimum amount of $500 per annum. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each standby Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate. (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The applicable Borrower shall pay directly to the applicable L/C Issuer for its own account, in U.S. Dollars or Canadian Dollars, as applicable, a fronting fee (i) with respect to each commercial Letter of Credit, at a rate separately agreed between the Company and the applicable L/C Issuer, computed on the Dollar Equivalent of the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the Company and the applicable L/C Issuer, computed on the Dollar Equivalent of the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at a rate separately agreed between the Company and the applicable L/C Issuer, computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit. Such fronting fee shall be due and payable on the date of issuance of any Letter of Credit and annually thereafter. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be 91 [Published CUSIP Number: ____] determined in accordance with Section 1.09. In addition, the applicable Borrower shall pay directly to each L/C Issuer for its own account, in U.S. Dollars or Canadian Dollars, as applicable, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable. (k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control. (l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Company or the Canadian Borrower, as applicable, shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit to the extent such Subsidiary does not reimburse the applicable L/C Issuer for such drawings. The Company and the Canadian Borrower hereby acknowledge that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company and/or the Canadian Borrower, as applicable, and that the Company's and/or the Canadian Borrower's business, as applicable, derives substantial benefits from the businesses of such Subsidiaries. 2.04 SWING LINE LOANS. (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Multicurrency Revolving Lenders set forth in this Section 2.04, to make loans in U.S. Dollars (each such loan, a "Swing Line Loan") to the Company from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Revolving Credit Percentage of the Outstanding Amount of Multicurrency Revolving Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender's Revolving Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Multicurrency Facility at such time, and (ii) the aggregate Outstanding Amount of the Multicurrency Revolving Loans of any Multicurrency Revolving Lender at such time, plus such Multicurrency Revolving Lender's Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Multicurrency Revolving Lender's Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lender's Revolving Commitment; and provided further that the Company shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest at a rate based on the Base Rate or such other overnight rate as offered to the Company from time to time by the Swing Line Lender. Immediately upon the making of 92 [Published CUSIP Number: ____] a Swing Line Loan, each Multicurrency Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Multicurrency Revolving Lender's Applicable Revolving Credit Percentage times the amount of such Swing Line Loan. (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Company's irrevocable notice to the Swing Line Lender and the Multicurrency Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Multicurrency Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Multicurrency Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Signatory Officer of the Company. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Multicurrency Administrative Agent (by telephone or in writing) that the Multicurrency Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Multicurrency Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Multicurrency Administrative Agent (including at the request of any Multicurrency Revolving Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Company at its office by crediting the account of the Company on the books of the Swing Line Lender in Same Day Funds. (c) Refinancing of Swing Line Loans. (i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Multicurrency Revolving Lender make a Base Rate Loan in an amount equal to such Lender's Applicable Revolving Credit Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Multicurrency Facility and the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the Company with a copy of the applicable Committed Loan Notice promptly after delivering such 93 [Published CUSIP Number: ____] notice to the Multicurrency Administrative Agent. Each Multicurrency Revolving Lender shall make an amount equal to its Applicable Revolving Credit Percentage of the amount specified in such Committed Loan Notice available to the Multicurrency Administrative Agent in Same Day Funds for the account of the Swing Line Lender at the Multicurrency Administrative Agent's Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Multicurrency Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company in such amount. The Multicurrency Administrative Agent shall remit the funds so received to the Swing Line Lender. (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Multicurrency Revolving Lenders fund its risk participation in the relevant Swing Line Loan and each Multicurrency Revolving Lender's payment to the Multicurrency Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation. (iii) If any Multicurrency Revolving Lender fails to make available to the Multicurrency Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Multicurrency Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender's Committed Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Multicurrency Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error. (iv) Each Multicurrency Revolving Lender's obligation to make Multicurrency Revolving Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the 94 [Published CUSIP Number: ____] foregoing; provided, however, that each Multicurrency Revolving Lender's obligation to make Multicurrency Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Company to repay Swing Line Loans, together with interest as provided herein. (d) Repayment of Participations. (i) At any time after any Multicurrency Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Multicurrency Revolving Lender its Applicable Revolving Credit Percentage thereof in the same funds as those received by the Swing Line Lender. (ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Multicurrency Revolving Lender shall pay to the Swing Line Lender its Applicable Revolving Credit Percentage thereof on demand of the Multicurrency Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Multicurrency Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement. (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Company for interest on the Swing Line Loans. Until each Multicurrency Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Multicurrency Revolving Lender's Applicable Revolving Credit Percentage of any Swing Line Loan, interest in respect of such Applicable Revolving Credit Percentage shall be solely for the account of the Swing Line Lender. (f) Payments Directly to Swing Line Lender. The Company shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender. 95 [Published CUSIP Number: ____] 2.05 PREPAYMENTS. (a) Optional. (i) Each Borrower may, upon notice from the Company to the Multicurrency Administrative Agent or the Australian Administrative Agent, as applicable, at any time or from time to time voluntarily prepay Term B Loans, Revolving Loans and Alternative Currency Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Multicurrency Administrative Agent or the Australian Administrative Agent, as applicable, not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars, (B) four Business Days (or five, in the case of prepayment of Revolving Loans or Alternative Currency Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Loans or Base Rate Loans denominated in Foreign Currencies, and (C) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in U.S. Dollars shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of Eurocurrency Rate Loans or Base Rate Loans denominated in Foreign Currencies shall be in a minimum principal amount of the Foreign Currency Equivalent of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Loans denominated in U.S. Dollars shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans or CDOR Rate Loans are to be prepaid, the Interest Period(s) or CDOR Period(s) of such Loans. The Multicurrency Administrative Agent or the Australian Administrative Agent, as applicable, will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender's ratable portion of such prepayment (based on such Lender's Applicable Percentage in respect of the relevant Facility). If such notice is given by the Company, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan or CDOR Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages. Each prepayment of the outstanding Term B Loans pursuant to this Section 2.05(a) shall be applied to the principal repayment installments thereof on a pro-rata basis, and each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities. (ii) The Company may, upon notice to the Swing Line Lender (with a copy to the Multicurrency Administrative Agent), at any time or from time to 96 [Published CUSIP Number: ____] time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Multicurrency Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. (b) Mandatory. (i) Within 90 days after each fiscal year end of the Company, to the extent the Consolidated Leverage Ratio at the end of such fiscal year was greater than 2.5 to 1.0, the Company shall prepay an aggregate principal amount of Loans equal to the excess (if any) of (A) 75% of Excess Cash Flow for such fiscal year over (B) the aggregate principal amount of Term B Loans prepaid pursuant to Section 2.05(a)(i) (such prepayments to be applied as set forth in clauses (vi) and (xi) below). (ii) If any Loan Party or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sections 7.05(b) - (j), which shall not be subject to the terms of this Section 2.05(b)(ii) or (vii)) which results in the realization by such Person of Net Cash Proceeds, the Company shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vi) and (xi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Company (as notified by the Company to the Multicurrency Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Company in writing to the Multicurrency Administrative Agent); and provided further, however, that any Net Cash Proceeds not so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii). (iii) Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any of its Equity Interests (other than Excluded Issuances and any sales or issuances of Equity Interests to another Loan Party), the Company shall prepay an aggregate principal amount of Loans equal to 50% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vi) and (xi) below); provided that at any time the Consolidated Leverage Ratio, as of the fiscal quarter most recently ended prior to such issuance for which a Compliance 97 [Published CUSIP Number: ____] Certificate has been delivered pursuant to Section 6.02(b), is less than 2.5 to 1.0, then such prepayment shall be equal to 25% of all Net Cash Proceeds received therefrom. (iv) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Sections 7.02(a)-(l)), the Company shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vi) and (xi) below). (v) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the Company shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vi) and (xi) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, or with respect to any tax refund, at the election of the Company (as notified by the Company to the Multicurrency Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards, indemnity payments or tax refund), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply, within 365 days after the receipt, (x) such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or (y) apply such tax refund to tax liabilities of the Loan Parties and their Subsidiaries or reinvest such tax refund in operating assets; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(v). (vi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term B Facility and to the principal repayment installments thereof on a pro-rata basis and, second, to the Revolving Facility and in the manner set forth in clause (xi) of this Section 2.05(b). (vii) Notwithstanding any of the other provisions of clause (ii) of this Section 2.05(b), so long as no Default shall have occurred and be continuing, a prepayment shall not be required under clause (ii) of this Section 2.05(b) (each an "Excluded Prepayment") (A) if the amount of such Excluded Prepayment is less than $1,000,000 and (B) to the extent the amount of all Excluded Prepayments does not exceed $5,000,000 in the aggregate. 98 [Published CUSIP Number: ____] (viii) If the Multicurrency Administrative Agent notifies the Company at any time that the Total Revolving Credit Outstandings at such time exceed the Revolving Facility then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Revolving Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Multicurrency Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations. (ix) If the Multicurrency Administrative Agent notifies the Company at any time that the Outstanding Amount of all Revolving Loans denominated in Foreign Currencies at such time exceeds the Foreign Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Revolving Loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed the Foreign Currency Sublimit then in effect. (x) If the applicable Administrative Agent notifies the Company at any time that the Outstanding Amount of all Australian Credit Loan or Canadian Credit Loans at such time exceeds the Australian Facility or Canadian Facility, respectively, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Australian Revolving Loans and/or Canadian Revolving Loans, as applicable, in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to the applicable Facility. (xi) Prepayments of the Revolving Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Loans (without a corresponding reduction to the Revolving Commitment to the extent the Consolidated Leverage Ratio after giving effect to such prepayment would be less than 2.00 to 1.00), and, third, with respect to prepayments pursuant to clause (viii) only, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Facility required pursuant to clause (i), (ii), (iii), (iv) or (v) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Loans outstanding at such time may be retained by the Company for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the 99 [Published CUSIP Number: ____] Company or any other Loan Party) to reimburse the L/C Issuer or the Revolving Lenders, as applicable. (c) Anything contained in Section 2.05(b) to the contrary notwithstanding, (i) if, following the occurrence of any "Asset Sale" (as such term or a similar term is defined in the Convertible Note Documents and/or the Senior Note Documents) by any Loan Party or any of its Subsidiaries, the Company is required to commit by a particular date (a "Commitment Date") to apply or cause its Subsidiaries to apply an amount equal to any of the "Net Proceeds" (as such term or a similar term is defined in the Convertible Note Documents and/or the Senior Note Documents) thereof in a particular manner, or to apply by a particular date (an "Application Date") an amount equal to any such "Net Proceeds" in a particular manner, in either case in order to excuse the Company from being required to make an "Asset Sale Offer" (as such term or similar term is defined in the Convertible Note Documents and/or the Senior Note Documents) in connection with such "Asset Sale", and the Company shall have failed to so commit or to so apply an amount equal to such "Net Proceeds" at least 15 days before the applicable Commitment Date or Application Date, as the case may be, or (ii) if the Company at any other time shall have failed to apply or commit or cause to be applied an amount equal to any such "Net Proceeds", and, within 15 days thereafter assuming no further application or commitment of an amount equal to such "Net Proceeds" the Company would otherwise be required to make an "Asset Sale Offer" in respect thereof, then in either such case the Company shall immediately pay or cause to be paid to the Multicurrency Administrative Agent an amount equal to such "Net Proceeds" to be applied to the payment of the Loans and L/C Borrowings and to Cash Collateralize the remaining L/C Obligations in the manner set forth in Section 2.05(b) in such amounts as shall excuse the Company from making any such "Asset Sale Offer". 2.06 TERMINATION OR REDUCTION OF COMMITMENTS. (a) Optional. The Company may, upon notice to the applicable Multicurrency Administrative Agent, terminate the Multicurrency Facility, the Australian Facility, the Canadian Facility, any Alternative Currency Addendum, the Multicurrency Letter of Credit Sublimit, the Canadian Letter of Credit Sublimit or the Swing Line Sublimit, or from time to time permanently reduce the Multicurrency Facility, the Australian Facility, the Canadian Facility, any Alternative Currency Addendum, any Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i) any such notice shall be received by the Multicurrency Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in a minimum principal amount of the Foreign Currency Equivalent of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings plus the Foreign Currency Reserve (if any) would exceed the Revolving Facility, (B) any Alternative Currency Addendum if, after giving effect thereto and to any concurrent prepayments hereunder, the Alternative Currency Loans would exceed the commitment under the Alternative Currency Addendum, (C) the Letter of Credit Sublimit if, after giving effect 100 [Published CUSIP Number: ____] thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (D) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Letter of Credit Sublimit and (iv) if, after giving effect to any reduction of the Revolving Facility, the Foreign Currency Sublimit exceeds the amount of the Revolving Facility, such Sublimit shall be automatically reduced by the amount of such excess. (b) Mandatory. (i) The aggregate Term B Commitments shall be automatically and permanently reduced to zero on the date of the Term B Borrowing. (ii) If, after giving effect to any reduction of the Revolving Commitments, the Foreign Currency Sublimit, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Revolving Facility, such Sublimit shall be automatically reduced by the amount of such excess. (c) Application of Commitment Reductions; Payment of Fees. The Multicurrency Administrative Agent will promptly notify the Revolving Lenders of any termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit, Foreign Currency Sublimit or the Revolving Commitment under this Section 2.06. Upon any reduction of the Revolving Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender's Applicable Revolving Credit Percentage of such reduction amount. All fees in respect of the Revolving Facility accrued until the effective date of any termination of the Revolving Facility shall be paid on the effective date of such termination. 2.07 REPAYMENT OF LOANS. (a) Term B Loans. The Company shall repay to the Term B Lenders the aggregate principal amount of all Term B Loans outstanding on the following dates in the respective amounts set forth opposite such dates (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.06):
Date Amount - ---- ------ March 31, 2007 $625,000 June 30, 2007 $625,000 September 30, 2007 $625,000 December 31, 2007 $625,000 March 31, 2008 $625,000 June 30, 2008 $625,000 September 30, 2008 $625,000 December 31, 2008 $625,000 March 31, 2009 $625,000
101 [Published CUSIP Number: ____]
June 30, 2009 $625,000 September 30, 2009 $625,000 December 31, 2009 $625,000 March 31, 2010 $625,000 June 30, 2010 $625,000 September 30, 2010 $625,000 December 31, 2010 $625,000 March 31, 2011 $625,000 June 30, 2011 $625,000 September 30, 2011 $625,000 December 31, 2011 $625,000 March 31, 2012 $625,000 June 30, 2012 $625,000 September 30, 2012 $625,000 December 31, 2012 $625,000 Maturity Date $235,000,000
provided, however, that the final principal repayment installment of the Term B Loans shall be repaid on the Maturity Date for the Term B Facility and in any event shall be in an amount equal to the aggregate principal amount of all Term B Loans outstanding on such date. (b) Revolving Loans. The applicable Borrower shall repay to the Revolving Lenders on the Maturity Date for the Revolving Facility the aggregate principal amount of all Revolving Loans outstanding on such date. (c) Alternative Currency Loans. The applicable Borrower or Borrowers shall repay to the Alternative Currency Lenders on the Maturity Date for each Alternative Currency Facility the aggregate principal amount of all Alternative Currency Loans outstanding on such date. (d) Swing Line Loans. The Company shall repay each Swing Line Loan on the earlier to occur of (i) the 15th of each month (or the next Business Day thereafter if the 15th is not a Business Day) and the last Business Day of each month and (ii) the Maturity Date for the Revolving Facility. (e) Repayment in Same Currency. Unless otherwise provided in this Agreement, each Loan, L/C Advance, L/C Borrowing or other advance hereunder shall be repaid or prepaid in the same currency in which the Loan or advance was made or the applicable Letter of Credit was issued. 2.08 INTEREST. (a) Subject to the provisions of Section 2.08(b), (i) each Eurocurrency Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest 102 [Published CUSIP Number: ____] Period plus the Applicable Rate for such Facility plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost; (ii) each Base Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility; (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for the Revolving Facility; and (iv) each CDOR Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the CDOR Rate plus the Applicable Rate for the Revolving Facility. (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (ii) If any amount (other than principal of any Loan) payable by any Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iii) Upon the request of the Required Lenders, Required Multicurrency Lenders, the Required Australian Lenders or the Required Canadian Lenders, as applicable, while any Event of Default exists, the applicable Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand. (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. (d) Minimum Interest Clause (Switzerland). (i) By entering into this Agreement, the Revolving Lenders and the Loan Parties have assumed that the interest payable under this Agreement is not and will not become subject to a Swiss Tax Deduction. Therefore, the Swiss 103 [Published CUSIP Number: ____] Borrower acknowledges and agrees that the interest rates set out in and calculated in accordance with this Section 2.08 with respect to Borrowings by the Swiss Borrower shall constitute a minimum interest rate. (ii) If, contrary to the assumptions of the Revolving Lenders and the Loan Parties, a Swiss Tax Deduction were to be due on any payment of interest due by the Swiss Borrower and should it be unlawful for the Swiss Borrower to comply with Section 3.01(i)(i) (Swiss Tax gross-up) for any reason (where this would otherwise be required by the terms of Section 3.01(i)(i) (Swiss Tax gross-up) taking into account the exclusions set out in Section 3.01(i)(i)(F)), such interest payment due by the Swiss Borrower shall be increased to an amount which (after the Swiss Tax Deduction) results in a payment to the Lenders entitled to such payment of an amount equal to the payment which would have been due had no Swiss Tax Deduction been required. For such purpose, the Swiss Tax Deduction shall be calculated on the full grossed-up interest amount. (iii) The Swiss Borrower undertakes to provide the Multicurrency Administrative Agent with the documents reasonably necessary under any law or double taxation treaty for the availability of any relief from the Swiss Withholding Tax. 2.09 FEES. In addition to certain fees described in Sections 2.03(i) and (j): (a) Facility Fee. The Company shall pay to the Multicurrency Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Revolving Credit Percentage, a facility fee (a "Facility Fee") in U.S. Dollars equal to the Applicable Rate times the actual daily amount of the Revolving Facility, as reduced from time to time (or, if the Revolving Facility and/or Revolving Commitments have terminated, on the Outstanding Amount of all Revolving Loans, Swing Line Loans and L/C Obligations), regardless of usage; provided that, with respect to the Canadian Revolving Commitments and the Australian Revolving Commitments, the Canadian Borrower and the Australian Borrower shall pay the portion of the Facility Fee corresponding to such Australian Revolving Commitments and Canadian Revolving Commitments to the Australian Administrative Agent and the Canadian Administrative Agent, respectively, in Australian Dollars or Canadian Dollars, as applicable, for the account of each Australian Revolving Lender and Canadian Revolving Lender, respectively. The Facility Fee shall accrue at all times during the Availability Period and thereafter so long as any Revolving Loans, Swing Line Loans or L/C Obligations remain outstanding, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period (and, if applicable, thereafter on demand). The Facility Fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual 104 [Published CUSIP Number: ____] daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything herein to the contrary, the Facility Fee payable to any Alternative Currency Lender shall be calculated without giving effect to any reduction in the Revolving Commitment and Applicable Revolving Credit Percentage of such Alternative Currency Lender pursuant to the terms of Section 2.01(e). (b) Other Fees. (i) The Company shall pay to the Arrangers and the Multicurrency Administrative Agent for their own respective accounts, in U.S. Dollars, fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever. (ii) The Company shall pay to the Lenders, in U.S. Dollars, such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever. (iii) Notwithstanding the foregoing, with respect to payment of the facility fee on any portion of the Commitments designated as an Alternative Currency Commitment, the Company may, in its discretion, cause payment of the facility fee on any such Alternative Currency Commitment to be made by the relevant Foreign Borrower under such Alternative Currency Commitment. 2.10 COMPUTATION OF INTEREST AND FEES. (a) All computations of interest for CDOR Rate Loans and for Base Rate Loans when the Base Rate is determined by National City Bank's "prime rate" shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year), or, in the case of interest in respect of Revolving Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Multicurrency Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. (b) For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the "deemed year") that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate 105 [Published CUSIP Number: ____] of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields. 2.11 EVIDENCE OF DEBT. (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Multicurrency Administrative Agent in the ordinary course of business. The accounts or records maintained by the Multicurrency Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Multicurrency Administrative Agent in respect of such matters, the accounts and records of the Multicurrency Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender to a Borrower made through the Multicurrency Administrative Agent, such Borrower shall execute and deliver to such Lender (through the Multicurrency Administrative Agent) a Note, which shall evidence such Lender's Loans to such Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto. (b) In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Multicurrency Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Multicurrency Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Multicurrency Administrative Agent shall control in the absence of manifest error. 2.12 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK. (a) General. All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in a Foreign Currency, all payments by the Borrowers hereunder shall be made to the applicable Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent's Office in U.S. Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the 106 [Published CUSIP Number: ____] Borrowers hereunder with respect to principal and interest on Loans denominated in a Foreign Currency shall be made to the applicable Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent's Office in such Foreign Currency and in Same Day Funds not later than the Applicable Time specified by such Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the applicable Administrative Agent may require that any payments due under this Agreement (other than payments in Canadian Dollars by the Canadian Borrower) be made in the United States. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in a Foreign Currency, such Borrower shall make such payment in U.S. Dollars in the Dollar Equivalent of the Foreign Currency payment amount. The applicable Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. All payments received by the applicable Administrative Agent (i) after 2:00 p.m., in the case of payments in U.S. Dollars, or (ii) after the Applicable Time specified by the applicable Administrative Agent in the case of payments in a Foreign Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the applicable Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the applicable Administrative Agent such Lender's share of such Borrowing, the applicable Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the applicable Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the applicable Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the applicable Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the applicable Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans. If such Borrower and such Lender shall pay such interest to the applicable Administrative 107 [Published CUSIP Number: ____] Agent for the same or an overlapping period, the applicable Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the applicable Administrative Agent, then the amount so paid shall constitute such Lender's Loan included in such Borrowing. Any payment by such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the applicable Administrative Agent. (ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the applicable Administrative Agent shall have received notice from a Borrower prior to the time at which any payment is due to the Applicable Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that such Borrower will not make such payment, the applicable Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Appropriate Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the applicable Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the applicable Administrative Agent, at the Overnight Rate. A notice of the applicable Administrative Agent to any Lender or a Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error. (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to any Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to such Borrower by such Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, such Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Term B Loans, Revolving Loans and Alternative Currency Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c). 108 [Published CUSIP Number: ____] (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. (f) Insufficient Funds. Subject to the terms of Section 8.03, if at any time insufficient funds are received by and available to any Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties. 2.13 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time then the Lender receiving such greater proportion shall (a) notify the Multicurrency Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in (1) the Term B Loan, Multicurrency Revolving Loans and subparticipations in L/C Obligations of the other Lenders if such Lender is a Multicurrency Revolving Lender, (2) the Australian Revolving Loans of the other Lenders if such Lender is a Australian Revolving Lender or (3) the Canadian Revolving Loans of the other Lenders if such Lender is a Canadian Revolving Lender, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders, as applicable, ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations and other amounts owing them, provided that: (i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations 109 [Published CUSIP Number: ____] or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section shall not be construed to apply to (A) any payment made by a Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to the Company or any Subsidiary thereof (as to which the provisions of this Section shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. 2.14 FOREIGN BORROWERS. (a) Effective as of the date hereof each of the Australian Borrower, the Canadian Borrower, the Danish Borrower, the Dutch Borrower, the Swiss Borrower and the English Borrower shall be a "Foreign Borrower" hereunder and may receive Revolving Loans for its account on the terms and conditions set forth in this Agreement. The Obligations of all Foreign Borrowers that are Foreign Subsidiaries shall be several in nature. (b) Each Foreign Borrower hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto; provided that each Foreign Borrower will execute any promissory notes required hereunder, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Foreign Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each Foreign Borrower. 110 [Published CUSIP Number: ____] ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 3.01 TAXES. (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the respective Borrowers hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the applicable Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the applicable Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law. (b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of subsection (a) above, each Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. (c) Indemnification by the Borrowers. Each Borrower shall indemnify each Administrative Agent, Lender and L/C Issuer, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by such Administrative Agent, Lender or L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to a Borrower by a Lender or a L/C Issuer (with a copy to each Administrative Agent), or by the applicable Administrative Agent on its own behalf or on behalf of a Lender or a L/C Issuer, shall be conclusive absent manifest error. (d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower shall deliver to the Multicurrency Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Multicurrency Administrative Agent. (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, 111 [Published CUSIP Number: ____] with respect to payments hereunder or under any other Loan Document shall deliver to the Company (with a copy to the Multicurrency Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Company or the Multicurrency Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Company or the Multicurrency Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Multicurrency Administrative Agent as will enable the Company or the Multicurrency Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, in the event that a Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to Company and the Multicurrency Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Multicurrency Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable: (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, (ii) duly completed copies of Internal Revenue Service Form W-8ECI, (iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a "bank" within the meaning of section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the applicable Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation" described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or (iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Company to determine the withholding or deduction required to be made. Without limiting the obligations of the Lenders set forth above regarding delivery of certain forms and documents to establish each Lender's status for U.S. withholding tax purposes, each Lender agrees promptly to deliver to the Multicurrency Administrative Agent or the Company, as the Multicurrency Administrative Agent or the Company shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such other documents and forms required by any relevant taxing authorities under the 112 [Published CUSIP Number: ____] Laws of any other jurisdiction, duly executed and completed by such Lender, as are required under such Laws to confirm such Lender's entitlement to any available exemption from, or reduction of, applicable withholding taxes in respect of all payments to be made to such Lender outside of the U.S. by the Borrowers pursuant to this Agreement or otherwise to establish such Lender's status for withholding tax purposes in such other jurisdiction. Each Lender shall promptly (i) notify the Multicurrency Administrative Agent of any change in circumstances which would modify or render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any such jurisdiction that any Borrower make any deduction or withholding for taxes from amounts payable to such Lender. Additionally, each of the Borrowers shall promptly deliver to any Administrative Agent, Lender or L/C Issuer, as such Administrative Agent, Lender or L/C Issuer shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Administrative Agent, Lender or L/C Issuer under such Laws in connection with any payment by any Administrative Agent, Lender or L/C Issuer of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction. (f) Treatment of Certain Refunds. If any Administrative Agent, Lender or L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by any Borrower or with respect to which any Borrower has paid additional amounts pursuant to this Section, it shall pay to such Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Administrative Agent, Lender or L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that each Borrower, upon the request of such Administrative Agent, Lender or L/C Issuer, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Administrative Agent, Lender or L/C Issuer in the event such Administrative Agent, Lender or L/C Issuer is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require any Administrative Agent, Lender or L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Borrower or any other Person. (g) UK Tax Matters. (i) A Loan Party is not required to make an increased payment to a Lender for a Tax Deduction in respect of tax imposed by the United Kingdom from a payment of interest on a Loan, if on the date on which the payment falls due: (A) the payment could have been made to the relevant Lender without a Tax 113 [Published CUSIP Number: ____] Deduction if it was a Qualifying Lender, but on that date such Lender is not or has ceased to be a Qualifying Lender other than as a result of any Change in Law after the date it became a Lender under this Agreement; (B) (x) the relevant Lender is a Qualifying Lender solely under sub-paragraph (i)(B) of the definition of Qualifying Lender; (y) the Board of the Inland Revenue of the United Kingdom has given (and not revoked) a direction (a "Direction") under Section 349C of the Taxes Act of the United Kingdom (as that provision has effect on the date on which the relevant Lender became a party to this Agreement) which relates to that payment and that Lender has received from such Loan Party or the Company a certified copy of that Direction; and (z) the payment could have been made to the Lender without any Tax Deduction in the absence of that Direction; (C) the relevant Lender is a Qualifying Lender solely under sub-paragraph (i)(B) of the definition of Qualifying Lender and it has not, other than by reason of any Change in Law after the date of this Agreement, given a Tax Confirmation to the Company; or (D) the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (v) below. (ii) If a Loan Party is required to make a Tax Deduction, that Loan Party shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law. (iii) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Loan Party making that Tax Deduction shall deliver to the Multicurrency Administrative Agent for the Lender entitled to the payment evidence reasonably satisfactory to that Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. (iv) A Treaty Lender and each Loan Party which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Loan Party to obtain authorization to make that payment without a Tax Deduction. (v) A English Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into gives a Tax Confirmation to the Company by entering into this Agreement. (vi) A English Non-Bank Lender shall promptly notify the Company and the Multicurrency Administrative Agent if there is any change in the position from that set out in the Tax Confirmation. 114 [Published CUSIP Number:____] (h) Value Added Tax. (i) All amounts set out, or expressed to be payable under a Loan Document by any party to this agreement to a Lender which (in whole or in part) constitute the consideration for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such amount, and accordingly, subject to paragraph (iii) below, if VAT is chargeable on any Credit Extension made by any Lender to any Loan Party under a Loan Document, that Loan Party shall pay to the Lender (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT (and such Lender shall promptly provide an appropriate VAT invoice to such Loan Party). (ii) If VAT is chargeable on any Credit Extension made by any Lender (the "Supplier") to any other Lender (the "Recipient") under a Loan Document, and any Loan Party (the "Relevant Party") is required by the terms of any Loan Document to pay an amount equal to the consideration for such Credit Extension to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Loan Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Relevant Party an amount equal to any credit or repayment from the relevant tax authority which it reasonably determines relates to the VAT chargeable on that supply. (iii) Where a Loan Document requires any Loan Party to reimburse a Lender for any costs or expenses, that Loan Party shall also at the same time pay and indemnify the Lender against all VAT incurred by the Lender in respect of the costs or expenses to the extent that the Lender reasonably determines that neither it nor any other member of any group of which it is a member for VAT purposes is entitled to credit or repayment from the relevant tax authority in respect of the VAT. (i) Swiss Tax Matters. (i) Swiss Tax gross-up. (A) The Swiss Borrower shall make all payments to be made by it without any Swiss Tax Deduction, unless a Swiss Tax Deduction is required by law. (B) The Swiss Borrower shall promptly upon becoming aware that the Swiss Borrower must make a Swiss Tax Deduction (or that there is any change in the rate or the basis of a Swiss Tax Deduction) notify the Multicurrency Administrative Agent on becoming so aware in respect of a payment payable to the Lenders. If the Multicurrency Administrative Agent receives such notification from a Lender it shall promptly notify the Swiss Borrower. 115 [Published CUSIP Number:____] (C) Each Lender confirms on the date of this Agreement that it is a Qualifying Swiss Lender and a Qualifying Swiss Bank and each Lender becoming a Lender by novation or assignment under Section 11.06 (Successor and Assigns) shall be deemed to have confirmed on the date of effectiveness of that novation or assignment that it is (i) a Qualifying Swiss Lender and a Qualifying Swiss Bank or (ii) a Lender and a Permitted Non-Qualifying Institution. (D) Each Lender undertakes to: (I) in the case of a Lender which is a Qualifying Swiss Lender and a Qualifying Swiss Bank promptly notify the Multicurrency Administrative Agent and the Swiss Borrower if it becomes aware that it has ceased or will or is likely to cease to be a Qualifying Swiss Lender of a Qualifying Swiss Bank; and (II) in the case of a Lender which is a Qualifying Swiss Lender and a Permitted Non-Qualifying Institution promptly notify the Collateral Agent and the Swiss Borrower if: (x) it becomes aware that it has ceased or will or is likely to cease to be a Qualifying Swiss Lender; or (y) it becomes aware that its Commitment and participation in the facilities under the Agreement has ceased or will or is likely to cease to be treated as having been provided by one creditor only for the purposes of the Non-Bank Rules. (E) If a Swiss Tax Deduction is required by law to be made by the Swiss Borrower, the amount of the payment due from the Swiss Borrower shall be increased (i.e. "grossed-up") to an amount which (after making any Swiss Tax Deduction) leaves an amount equal to the payment which would have been due if no Swiss Tax Deduction had been required. (F) The Swiss Borrower is not required to make an increased payment to a Lender under Section 3.01(i)(i)(E) above for a Swiss Tax Deduction from a payment of interest on a Loan, if: (I) on the date on which the payment falls due: (x) that payment could have been made to the relevant Lender without a Swiss Tax Deduction if it was a Qualifying Swiss Lender, but on that date that Lender is not or has ceased to be a Qualifying Swiss Lender other than as 116 [Published CUSIP Number:____] a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or (y) the relevant Lender is a Treaty Lender and the Swiss Borrower is able to demonstrate that that payment could have been made to the Lender without the Swiss Tax Deduction had that Lender complied with its obligations under sub-clause 3.01(i)(ii)(G) below; or (II) the obligation on the part of the Swiss Borrower to make such increased payment to a Lender results from: (x) that Lender ceasing to be a Qualifying Swiss Bank; or (y) if that Lender is a Permitted Non-Qualifying Institution, any increase in the number of creditors which its Commitment and participation in the Facilities is treated as having been provided by for the purposes of the Non-Bank Rules, in each case other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law, or any published practice or concession of any relevant taxing authority including, without limitation, the Guidelines. (G) If the Swiss Borrower is required to make a Swiss Tax Deduction, the Swiss Borrower shall make that Swiss Tax Deduction and any payment required in connection with that Swiss Tax Deduction within the time allowed and in the minimum amount required by law. (H) Within 30 days of making either a Swiss Tax Deduction or any payment required in connection with that Swiss Tax Deduction, the Swiss Borrower shall deliver to the Multicurrency Administrative Agent for the Person entitled to the payment evidence reasonably satisfactory to that Person that the Swiss Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. (I) A Treaty Lender and the Swiss Borrower shall co-operate in completing any procedural formalities necessary (i) for the Swiss Borrower to obtain authorization to make payments to which that Treaty Lender is entitled without a Swiss Tax Deduction or (ii) for such Treaty 117 [Published CUSIP Number:____] Lender to successfully apply for the full refund of Swiss Federal Withholding Tax. (ii) Tax Indemnity. (A) The Swiss Borrower shall (within three Business Days of demand by the Collateral Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Swiss Tax by that Protected Party in respect of a Loan Document other than in respect of an assignment or transfer by a Lender. (B) Section 3.01(i)(ii)(A) above shall not apply: (I) with respect to any Swiss Tax assessed on a Lender: (x) under the law of the jurisdiction in which that Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Lender is treated as resident for tax purposes; or (y) under the law of the jurisdiction in which that Lender's office performing the obligations under the Loan Documents is located in respect of amounts received or receivable in that jurisdiction, if that Swiss Tax is imposed on or calculated by reference to the net income, net revenues, profits or gains (whichever term or analogous term is relevant to a Lender in the jurisdiction where such Lender is liable to Swiss Tax) received or receivable (but not any sum deemed to be received or receivable) by that Lender; or (II) to the extent a loss, liability or cost: (x) is compensated for by an increased payment under Section 3.01(i)(i) (Swiss Tax gross-up); (y) would have been compensated for by an increased payment under Section 3.01(i)(i) (Swiss Tax gross-up) but was not so compensated solely because one of the exclusions in Section 3.01(i)(i)(F) (Swiss Tax gross-up) applied. (C) A Protected Party making, or intending to make a claim under Section 3.01(i)(ii) above shall promptly notify the Multicurrency Administrative Agent of the event which will give, or has given, rise to the 118 [Published CUSIP Number:____] claim, following which the Multicurrency Administrative Agent shall notify the Company. (D) A Protected Party shall, on receiving a payment from the Company under this Section 3.01(i)(ii), notify the Collateral Agent. (iii) Swiss Tax Credit. If the Company or the Swiss Borrower makes a Swiss Tax Payment and the relevant Lender determines that, (A) a Swiss Tax Credit is attributable either to an increased payment of which that Swiss Tax Payment forms part, or to that Swiss Tax Payment and (B) that such Lender has obtained, utilized and retained that Swiss Tax Credit, then the Lender shall pay an amount to the Swiss Borrower which that Lender determines will leave it (after that payment) in the same after-Swiss Tax position as it would have been in had the Swiss Tax Payment not been required to be made. (iv) Stamp taxes. The Swiss Borrower or the Company shall pay and, within three Business Days of demand, indemnify each Lender against any cost, loss or liability that Lender incurs in relation to all stamp duty, registration and other similar Swiss Taxes payable in respect of any Loan Document other than in respect of an assignment, transfer or sub-participation by a Lender. (v) Value added tax. (A) all amounts expressed to be payable under a Loan Document by any Party to a Lender shall be deemed to be exclusive of any Swiss VAT. If Swiss VAT is chargeable on any supply made by any Lender to any Party in connection with a Loan Document, that Party shall pay to the Lender (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT. (B) Where a Loan Document requires any Party to reimburse a Lender for any costs or expenses, that Party shall also at the same time indemnify the Lender against all Swiss VAT incurred by the Lender in respect of the costs or expenses to the extent that the Lender reasonably determines that neither it nor any other member of any group of which it is a member for Swiss VAT purposes is entitled to credit or repayment form the relevant tax authority in respect of the Swiss VAT. 3.02 ILLEGALITY. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in U.S. Dollars or a Foreign Currency) or CDOR Rate Loans, or to determine or charge interest rates based upon the Eurocurrency Rate or the CDOR Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, U.S. 119 [Published CUSIP Number:____] Dollars or any Foreign Currency in the applicable interbank market, then, on notice thereof by such Lender to the Company through the Multicurrency Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans or CDOR Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in U.S. Dollars, to convert Base Rate Loans to Eurocurrency Rate Loans or CDOR Rate Loans, as applicable, shall be suspended until such Lender notifies the Multicurrency Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the applicable Borrower shall, upon demand from such Lender (with a copy to the applicable Administrative Agent), prepay or, if applicable, convert all Eurocurrency Rate Loans or CDOR Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans or CDOR Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans or CDOR Rate Loans, as applicable. Upon any such prepayment or conversion, the applicable Borrower shall also pay accrued interest on the amount so prepaid or converted. 3.03 INABILITY TO DETERMINE RATES. If the Required Lenders (or, with respect to Alternative Currency Loans, Australian Revolving Loans and Canadian Revolving Loans, the Required Alternative Currency Lenders, the Required Australian Revolving Lenders and the Required Canadian Revolving Lenders, respectively) determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in U.S. Dollars or a Foreign Currency) are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in U.S. Dollars or a Foreign Currency), or (c) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Multicurrency Administrative Agent will promptly so notify the Company and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended until the Multicurrency Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Company may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein. 3.04 INCREASED COSTS; RESERVES ON EUROCURRENCY RATE LOANS AND CDOR RATE LOANS. (a) Increased Costs Generally. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, 120 [Published CUSIP Number:____] deposits with or for the account of, or credit extended or participated in by, any Lender (except (A) any reserve requirement contemplated by Section 3.04(e), (B) any reserve requirement of the Bank of Canada and (C) the requirements of the Bank of England and the Financial Services Authority or the European Central Bank reflected in the Mandatory Cost, other than as set forth below) or the L/C Issuer; (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurocurrency Rate Loan or CDOR Rate Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to represent the cost to any Lender of complying with the requirements of the Bank of England and/or the Financial Services Authority or the European Central Bank in relation to its making, funding or maintaining Eurocurrency Rate Loans; or (iv) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Company will pay (or cause the applicable Foreign Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered. (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender's or the L/C Issuer's holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender's or the L/C Issuer's capital or on the capital of such Lender's or the L/C Issuer's holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the 121 [Published CUSIP Number:____] L/C Issuer or such Lender's or the L/C Issuer's holding company could have achieved but for such Change in Law (taking into consideration such Lender's or the L/C Issuer's policies and the policies of such Lender's or the L/C Issuer's holding company with respect to capital adequacy), then from time to time the Company will pay (or cause the applicable Foreign Borrower to pay) to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender's or the L/C Issuer's holding company for any such reduction suffered. (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Company shall be conclusive absent manifest error. The Company shall pay (or cause the applicable Foreign Borrower to pay) such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof. (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender's or the L/C Issuer's right to demand such compensation, provided that no Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lender's or the L/C Issuer's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). (e) Additional Reserve Requirements. The Company shall pay (or cause the applicable Foreign Borrower to pay) to each Lender, as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Company shall have received at least 10 days' prior notice (with a copy to the Multicurrency Administrative Agent) of such additional costs from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional costs shall be due and payable 10 days from receipt of such notice. 3.05 COMPENSATION FOR LOSSES. Upon demand of any Lender (with a copy to the Multicurrency Administrative Agent) from time to time, the Company shall promptly compensate (or cause the applicable Foreign 122 [Published CUSIP Number:____] Borrower to compensate) such Lender for and hold such Lender harmless from any direct loss, cost or expense incurred by it as a result of: (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period (or CDOR Period) for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); (b) any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Company or the applicable Foreign Borrower; (c) any failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) on its scheduled due date or any payment thereof in a different currency; or (d) any assignment of a Eurocurrency Rate Loan or a CDOR Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to Section 11.13; including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Company shall also pay (or cause the applicable Foreign Borrower to pay) any customary de minimus administrative fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts payable by the Company (or the applicable Foreign Borrower) to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded. 3.06 MITIGATION OBLIGATIONS. Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, 123 [Published CUSIP Number:____] as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay (or to cause the applicable Foreign Borrower to pay) all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. 3.07 SURVIVAL. All of the Borrowers' obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder. 3.08 PARALLEL DEBT. (a) Each Loan Party (other than an Australian Loan Party or a Canadian Loan Party) must pay the Multicurrency Collateral Agent, as an independent and separate creditor, an amount equal to each Secured Party Claim on its due date. (b) The Multicurrency Collateral Agent may enforce performance of any Multicurrency Collateral Agent Claim in its own name as an independent and separate right. This includes any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceeding. (c) Each Secured Party must, at the request of the Multicurrency Collateral Agent, perform any act required in connection with the enforcement of any Multicurrency Collateral Agent Claim. This includes joining in any proceedings as co-claimant with the Multicurrency Collateral Agent. (d) Unless the Multicurrency Collateral Agent fails to enforce a Multicurrency Collateral Agent Claim within a reasonable time after its due date, a Secured Party may not take any action to enforce the corresponding Secured Party Claim unless it is requested to do so by the Multicurrency Collateral Agent. (e) Each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join in any proceedings as co-claimant with the Multicurrency Collateral Agent in respect of any Multicurrency Collateral Agent Claim. (f) (i) Discharge by a Loan Party of a Secured Party Claim will discharge the corresponding Multicurrency Collateral Agent Claim in the same amount; and (ii) discharge by a Loan Party of a Multicurrency Collateral Agent Claim will discharge the corresponding Secured Party Claim in the same amount. (g) The aggregate amount of the Multicurrency Collateral Agent Claims will never exceed the aggregate amount of Secured Party Claims. (h) (i) A defect affecting a Multicurrency Collateral Agent Claim against a Loan Party will not affect any Secured Party Claim and (ii) a defect affecting a Secured 124 [Published CUSIP Number:____] Party Claim against a Loan Party will not affect any Multicurrency Collateral Agent Claim. (i) If the Multicurrency Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Multicurrency Collateral Agent. ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) Loan Documents. Receipt by the Multicurrency Administrative Agent of executed counterparts of this Agreement and the other Loan Documents, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party. (b) Opinions of Counsel. Receipt by the Multicurrency Administrative Agent of favorable opinions of legal counsel to the Loan Parties in Delaware, Massachusetts, New York and Ohio, and opinions of counsel in the jurisdiction of each Foreign Borrower, addressed to the Multicurrency Administrative Agent, the Canadian Administrative Agent, the Australian Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Arrangers may reasonably request, dated as of the Closing Date, and in form and substance satisfactory to the Arrangers. (c) Financial Statements. The Arrangers shall have received: (i) audited consolidated financial statements of the Company and its Subsidiaries as of (x) December 31, 2003, December 31, 2004 and December 31, 2005 in the event the Closing Date takes place before the Company's audited financial statements for the fiscal year ended December 31, 2006 become available; or (y) December 31, 2004, December 31, 2005 and December 31, 2006 in the event the Closing Date takes place thereafter, (ii) unaudited financial statements of the Company for the nine-month period ending on September 30, 2006; provided that each of the foregoing audited and unaudited financial statements (x) shall be satisfactory in form and substance to the Lead Arrangers, (y) shall not be materially inconsistent with the Pre-Commitment Information, and (z) shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended, and all other accounting rules and regulations of the SEC promulgated thereunder; (iii) a consolidated pro forma balance sheet of the Company and its Subsidiaries as of December 31, 2006 and the related consolidated pro forma statements of income and cash 125 [Published CUSIP Number:____] flows of the Company and its Subsidiaries for the fiscal year then ended, certified by the chief financial officer or treasurer of the Company; and (iv) forecasts prepared by management of the Company, each in form and substance satisfactory to the Arrangers, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Closing Date and on an annual basis for four years thereafter. (d) Organization Documents, Resolutions, Etc. Receipt by the Multicurrency Administrative Agent of the following, each of which shall be originals or facsimiles (followed promptly by originals), in form and substance satisfactory to the Arrangers and their legal counsel: (i) copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date; (ii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Signatory Officers of each Loan Party as the Multicurrency Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Signatory Officer thereof authorized to act as a Signatory Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and (iii) such documents and certifications as the Multicurrency Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization or formation and each other jurisdiction where the failure to be so qualified and in good standing could reasonably be expected to have a Material Adverse Effect. (e) Perfection and Priority of Liens. Receipt by the applicable Collateral Agent of the following: (i) searches of Uniform Commercial Code, PPSA and other similar filings in the jurisdiction of formation of each Loan Party or where a filing would need to be made in order to perfect the Multicurrency Collateral Agent's security interest in the Multicurrency Collateral, the Canadian Collateral Agent's security interest in the Canadian Collateral, the Australian Collateral Agent's security interest in the Australian Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens, and any other searches required by the applicable Collateral Agent to perfect security interests in any additional Collateral; (ii) UCC and PPSA financing statements, or the equivalent, for each appropriate jurisdiction as is necessary, in the applicable Collateral Agent's 126 [Published CUSIP Number:____] reasonable discretion, to perfect the Multicurrency Collateral Agent's security interest in the Multicurrency Collateral, the Canadian Collateral Agent's security interest in the Canadian Collateral, the Australian Collateral Agent's security interest in the Australian Collateral and any other documentation required by the applicable Collateral Agent to perfect security interests in any additional Collateral; (iii) all certificates evidencing any certificated Equity Interests pledged pursuant to the Collateral Documents, together with duly executed in blank, undated stock powers attached thereto; (iv) searches of ownership of, and Liens on, intellectual property identified on Schedule 5.17 in the appropriate governmental offices; (v) duly executed notices of grant of security interest in the form required by the Collateral Documents as are necessary, in the applicable Collateral Agent's reasonable discretion, to perfect the Multicurrency Collateral Agent's security interest in the intellectual property of the Multicurrency Loan Parties identified on Schedule 5.17, to perfect the Canadian Collateral Agent's security interest in the intellectual property of the Canadian Loan Parties identified on Schedule 5.17, to perfect the Australian Collateral Agent's security interest in the intellectual property of the Australian Loan Parties identified on Schedule 5.17 and any other documentation required by the applicable Collateral Agent to perfect security interests in the intellectual property of the Loan Parties identified on Schedule 5.17; and (vi) evidence that all other action that the Arrangers may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents have been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords' and bailees' waiver and consent agreements; it being understood and agreed that the Loan Parties shall only be required to use their good faith efforts (not including financial accommodations) to obtain such landlords' and bailees' waivers and consents). (f) Real Property Collateral. Receipt by the applicable Collateral Agent of the following: (i) fully executed and, to the extent required, notarized deeds of trust, trust deeds, deeds to secure debt and mortgages in substantially the form of Exhibit G (with such changes as may be satisfactory to the Arrangers and their counsel to account for local law matters) and covering the properties listed on Schedule 4.01(f)(i) (the "Mortgaged Properties") (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.11, in each case as amended, the "Mortgages"), duly executed by the appropriate Loan Party encumbering the fee interest and/or leasehold interest of such Loan Party, and evidence that such Mortgages are in 127 [Published CUSIP Number:____] form suitable for filing or recording in all filing or recording offices that the Arrangers may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien (subject to Permitted Liens) on the property described therein in favor of the applicable Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid; (ii) American Land Title Association/American Congress on Surveying and Mapping form surveys (or, to the extent acceptable to the Arrangers, mortgage location surveys or other forms of surveys prepared by a land surveyor duly registered and licensed in the State in which the Mortgaged Property is located), together with their foreign equivalents (if any), for which all necessary fees (where applicable) have been paid, certified to the applicable Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Arrangers by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Arrangers, sufficient to enable the issuer of the applicable Mortgage Policy to issue such Mortgage Policy without any standard or preprinted exception for matters that would be disclosed on an accurate survey and inspection of the applicable Mortgaged Property; (iii) ALTA mortgagee title insurance policies (together with their foreign equivalents (if any), the "Mortgage Policies") issued, coinsured and reinsured by a title insurance company reasonably acceptable to the Arrangers with respect to each Mortgaged Property, assuring the Arrangers that each of the Mortgages creates a valid and enforceable first priority mortgage lien on the applicable Mortgaged Property, free and clear of all defects (including, but not limited to, mechanics' and materialmen's Liens) and encumbrances, excepting only other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics' and materialmen's Liens and for zoning of the applicable property) and such coinsurance and direct access insurance as the Arrangers may reasonably deem necessary or desirable; (iv) evidence of the insurance required by the terms of the Mortgages; (v) to the extent available, an appraisal of each of the properties described in the Mortgages; and (vi) evidence that all other action that the Arrangers may reasonably deem necessary or desirable in order to create valid first and subsisting Liens (subject to Permitted Liens) on the property described in the Mortgages has been taken. (g) Evidence of Insurance. Receipt by the Multicurrency Administrative Agent of copies of certificates of insurance of the Loan Parties evidencing liability and property 128 [Published CUSIP Number:____] insurance meeting the requirements set forth in Section 6.07. Such evidence shall include, but not be limited to, evidence that the applicable Collateral Agent is an additional insured (in the case of liability insurance) and Lender's loss payee (in the case of property insurance) on behalf of the applicable Lenders. (h) Governmental Approvals. Receipt by the Multicurrency Administrative Agent of all governmental, shareholder and third party consents and approvals necessary in connection with the related financings and other transactions contemplated hereby (including, for the avoidance of doubt, any works council advice (ondernemingsraadadvies)) and expiration of all applicable waiting periods without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on the Loan Parties or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the Multicurrency Administrative Agent could reasonably be expected to have such effect. (i) Solvency Certificate. The Multicurrency Administrative Agent shall have received from the chief financial officer of the Company certification as to the financial condition and solvency of each Borrower and of the Company and its Subsidiaries taken as a whole before and after giving effect to the Transactions. (j) Termination of Existing Indebtedness. Receipt by the Multicurrency Administrative of evidence that the Existing Credit Agreement will be simultaneously terminated and all Liens securing obligations under such Existing Credit Agreement, if any, will be simultaneously released with the initial funding of the Loans. (k) Closing Certificate. Receipt by the Multicurrency Administrative Agent of a Compliance Certificate as of the last day of the fiscal quarter of the Company ended December 31, 2006, signed by the chief executive officer, chief financial officer, treasurer or controller of the Company certifying (i) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (ii) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (iii) detailed calculations demonstrating that the Consolidated Leverage Ratio as of the most recent fiscal quarter ended prior to the Closing Date is less than 5.25 to 1.00 and that the Company and its Subsidiaries shall have Consolidated EBITDA for the twelve-month period ended December 31, 2006 of at least $116 million. (l) Fees. Receipt by the Arrangers, each Administrative Agent, the Collateral Agents and the Lenders of any fees required to be paid on or before the Closing Date. (m) Attorney Costs. The Company shall have paid all fees, charges and disbursements of counsel to the Arrangers (directly to such counsel if requested by the Arrangers) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of fees, costs and disbursements incurred or to be incurred by it through the 129 [Published CUSIP Number:____] closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and each Administrative Agent). (n) Environmental Reports. The Company shall have submitted any environmental assessment report completed prior to December 21, 2006, in form and substance satisfactory to the Arrangers from an environmental consulting firm acceptable to the Arrangers, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any manufacturing facilities of the Company or any of its Subsidiaries, and the Arrangers shall be satisfied with the nature and amount of any such matters and with the Company's plans with respect thereto. (o) Information; Litigation. Except as otherwise publicly disclosed, there shall have been no change, occurrence or development since December 31, 2005, and no action, suit, investigation or proceeding shall be pending or, to the knowledge of any of the Loan Parties, threatened that in any case, either individually or in the aggregate, (A) has had, or could reasonably be expected to have, a material adverse effect on business, assets, properties, liabilities (actual and contingent), operations, or condition (financial or otherwise) of the Loan Parties taken as a whole, (B) adversely affected, or could reasonably be expected to affect, the ability of the Company or any Guarantor to perform its obligations under the Loan Documents or (C)) adversely affected, or could reasonably be expected to affect, the rights and remedies of the Lenders under the Loan Documents for the Facility; (ii) there shall be no action, suit, investigation or proceeding pending or, to the knowledge of any of the Loan Parties, threatened that seeks to restrain or enjoin the Transactions; and (iii) none of the Arrangers or the Lenders shall have discovered or otherwise become aware of any information not previously disclosed to it that is inconsistent in a material and adverse manner with any information provided to it prior to the date hereof, taken as a whole, in respect of the Loan Parties. (p) Debt Issuances. The Company shall have received no less than an aggregate of (i) $175 million in gross proceeds from the sale of the Senior Notes and (ii) $135 million in gross proceeds from the sale of the Convertible Notes. (q) Debt Ratings. The Company shall have obtained Debt Ratings from each of Moody's and S&P. (r) Additional Assurances. The Company will deliver such other assurances, certificates, documents, consents or opinions as each Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Multicurrency Administrative Agent shall have 130 [Published CUSIP Number:____] received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent: (a) The representations and warranties of each Loan Party contained in Article V and in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall (i) with respect to representations and warranties that contain a materiality qualification, be true and correct and (ii) with respect to representations and warranties that do not contain a materiality qualification, be true and correct in all material respects, in each case on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01. (b) No Default shall exist, or would result from such proposed Credit Extension or the application of the proceeds thereof. (c) The applicable Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. (d) If the applicable Borrower is a Foreign Borrower, then the conditions of Section 2.14 to the designation of such Borrower as a Foreign Borrower shall have been met to the satisfaction of the Multicurrency Administrative Agent. (e) In the case of a Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Multicurrency Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency. Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Company shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension. 131 [Published CUSIP Number:____] ARTICLE V REPRESENTATIONS AND WARRANTIES Each of the Loan Parties represents and warrants to the Multicurrency Administrative Agent, Australian Administrative Agent, Canadian Administrative Agent and the Lenders that: 5.01 EXISTENCE, QUALIFICATION AND POWER. Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and in good standing (or the foreign equivalent, if any) under the Laws of the jurisdiction of its incorporation, organization or formation, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. 5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is or is to be a party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person's Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Material Contract to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law. 5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (d) the exercise by any Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 5.03, all of which have been duly obtained, taken, given or made and are in full 132 [Published CUSIP Number:____] force and effect, except as set forth on Schedule 5.03. All applicable waiting periods in connection with the Transactions (if any) have expired without any action having been taken by any Governmental Authority restraining, preventing or imposing materially adverse conditions upon the Transactions or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. 5.04 BINDING EFFECT. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting creditors' rights generally. 5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO INTERNAL CONTROL EVENT. (a) The audited financial statements referenced in Section 4.01(c)(i) (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) fairly present the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein. (b) The unaudited financial statements referenced in Section 4.01(c)(ii) (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments. (c) The pro forma balance sheet and statements of income and cash flows referenced in Section 4.01(c)(iii) fairly presents the consolidated pro forma financial condition of the Company and its Subsidiaries as at the date of such pro forma balance sheet and the consolidated pro forma results of operations of the Company and its Subsidiaries for the period ended on such date giving effect to the Transactions. (d) The consolidated forecasted balance sheet, statements of income and cash flows of the Company and its Subsidiaries delivered pursuant to Section 4.01(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Company's best estimate of its future financial condition and performance. 133 [Published CUSIP Number:____] (e) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect. (f) To the best knowledge of the Loan Parties, no Internal Control Event exists or has occurred since the date of the Audited Financial Statements that has resulted in or could reasonably be expected to result in a misstatement in any material respect, in any financial information delivered or to be delivered to the Multicurrency Administrative Agent or the Lenders, of (i) covenant compliance calculations provided hereunder or (ii) the assets, liabilities, financial condition or results of operations of the Company and its Subsidiaries on a consolidated basis. 5.06 LITIGATION. There are no actions, suits, proceedings, claims, investigations or disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority (including, without limitation, those regulatory agencies responsible for licensing, accrediting or regulating the items manufactured by a Loan Party or any of its Subsidiaries), by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement, any other Loan Document or the consummation of the Transactions, or (b) either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect. 5.07 NO DEFAULT. Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document. 5.08 OWNERSHIP OF PROPERTY; LIENS; INVESTMENTS. (a) Each Loan Party and each of its Subsidiaries has good record and marketable title in fee simple (with respect to real property) to, or valid leasehold interests in or licenses to use, all real property and personal property (including intellectual property) necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (b) Schedule 5.08(b) sets forth a complete and accurate list of all Liens on the property or assets of each Loan Party as of the Closing Date, showing the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of such Loan Party subject thereto. The property of each Loan Party and each of its 134 [Published CUSIP Number:____] Subsidiaries is subject to no Liens, other than Liens set forth on Schedule 5.08(b), and as otherwise permitted by Section 7.01. (c) Schedule 5.08(c) sets forth a complete and accurate list of all real property owned by each Loan Party as of the Closing Date, showing the street address, county or other relevant jurisdiction, state, record owner and book or estimated fair value thereof. Each Loan Party and each of its Subsidiaries has good, marketable and insurable fee simple title to the real property owned by such Loan Party or such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents. (d) (i) Schedule 5.08(d)(i) sets forth a complete and accurate list of all material leases of real property under which any Loan Party is the lessee, showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof. To the Loan Parties' knowledge, each such lease is the legal, valid and binding obligation of the lessor thereof, enforceable in accordance with its terms. (ii) Schedule 5.08(d)(ii) sets forth a complete and accurate list of all leases of real property under which any Loan Party is the lessor, showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof. Each such lease is the legal, valid and binding obligation of the lessee thereof, enforceable in accordance with its terms. (e) Schedule 5.08(e) sets forth a complete and accurate list of all material Investments held by any Loan Party or any Subsidiary of a Loan Party on the date hereof, showing as of the date hereof the amount, obligor or issuer and maturity, if any, thereof. 5.09 ENVIRONMENTAL COMPLIANCE. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in liability for the Loan Parties and their Subsidiaries in excess of the Threshold Amount: (a) The Loan Parties and their respective Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties. (b) None of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state, local or provincial list or is adjacent to any such property; there are no and never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the best of 135 [Published CUSIP Number:____] the knowledge of the Loan Parties, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries; there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries. (c) Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in liability to any Loan Party or any of its Subsidiaries. 5.10 INSURANCE. Except with respect to products liability coverage placed through the Insurance Subsidiary, the properties and liabilities of each Loan Party and its Subsidiaries are insured with companies having an A.M. Best Rating of at least A- that are not Affiliates of a Loan Party, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Loan Party or the applicable Subsidiary operates. Except as set forth on Schedule 5.10, Each of the Loan Parties and its Subsidiaries self-insures for products liability in such amounts, with such deductibles and with such reserves on their balance sheet, and covering such risks as are customarily carried by companies that are in the same or similar industries as the Loan Parties and that self-insure products liability or similar liabilities. 5.11 TAXES. Each of the Loan Parties and its Subsidiaries have filed all federal, state and other material tax returns and reports required to be filed, and have paid all federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those (a) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (b) for which adequate reserves have been provided in accordance with GAAP, but with respect to which no challenge has been initiated. There is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement. The English Borrower is entitled to treaty benefits under the Convention between the Government of the country-regionplaceUnited States and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation 136 [Published CUSIP Number:____] and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital, signed July 24, 2001. 5.12 ERISA COMPLIANCE. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in liability for the Loan Parties and their Subsidiaries in excess of the Threshold Amount: (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Loan Parties, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Loan Party and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan. (b) There are no pending or, to the best knowledge of the Loan Parties, threatened claims, actions or lawsuits, or action by any Governmental Authority. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan. (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA. (d) With respect to each scheme or arrangement mandated by a government other than the United States (a "Foreign Government Scheme or Arrangement") and with respect to each employee benefit plan maintained or contributed to by any Loan Party or any Subsidiary of any Loan Party that is not subject to United States law (a "Foreign Plan"): (i) any employer and employee contributions required by law or by the terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; 137 [Published CUSIP Number:____] (ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and (iii) each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities. 5.13 SUBSIDIARIES; EQUITY INTERESTS; LOAN PARTIES. As of the Closing Date, no Loan Party has any Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned directly or indirectly by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens except those created under the Collateral Documents. As of the Closing Date, no Loan Party has any equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.13. Set forth on Part (c) of Schedule 5.13 is a complete and accurate list of all Loan Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation, organization or formation, the address of its principal place of business and its U.S. taxpayer identification number or, in the case of any Foreign Loan Party that does not have a U.S. taxpayer identification number, its unique identification number issued to it by the jurisdiction of its incorporation, organization or formation. The copy of the charter of each Loan Party and each amendment thereto provided pursuant to Section 4.01(d) is a true and correct copy of each such document, each of which is valid and in full force and effect. 5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT. (a) Each of the Loan Parties is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of any Borrower on an individual basis or of the Company and its Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between any Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock. (b) None of the Loan Parties, any Person Controlling a Loan Party, or any Subsidiary is or is required to be registered as an "investment company" under the Investment Company Act of 1940. 138 [Published CUSIP Number:____] 5.15 DISCLOSURE. Each of the Loan Parties have disclosed to the Multicurrency Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Multicurrency Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect; provided that, with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time. 5.16 COMPLIANCE WITH LAWS. Each Loan Party and each Subsidiary thereof is in compliance with the requirements of all Laws (including, without limitation, 42 U.S.C. Section 1320a-7b) and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. Each Loan Party and each of its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (excluding such items that are not used in the business of such Loan Party or Subsidiary, have de minimus value and have or will lapse in due course, collectively, "IP Rights") that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person, and Schedule 5.17 sets forth a complete and accurate list of all registered IP Rights (or IP Rights for which an application has been submitted for registration) owned by each Loan Party (other than licenses of off-the-shelf IP Rights) as of the Closing Date. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in liability for the Loan Parties and their Subsidiaries in excess of the Threshold Amount, (a) to the best knowledge of the Loan Parties, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party or any of its Subsidiaries infringes upon any rights held by any other Person and (b) no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Loan Parties, threatened. 139 [Published CUSIP Number:____] 5.18 SOLVENCY. Each Borrower is Solvent and the Company and its Subsidiaries taken as a whole are Solvent. 5.19 CASUALTY, ETC. Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 5.20 LABOR MATTERS. Except as set forth on Schedule 5.20 or as required by applicable Law, there are no collective bargaining agreements or Multiemployer Plans covering the employees of any Loan Party or any of its Subsidiaries as of the Closing Date and neither any Loan Party nor any Subsidiary has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five years. 5.21 COLLATERAL DOCUMENTS. Except as set forth on Schedule 5.03, the provisions of the Collateral Documents are effective to create in favor of the applicable Collateral Agent for the benefit of the Secured Parties or, where required under the laws governing such Collateral Document, in the applicable Collateral Agent's own name, a legal, valid and enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all right, title and interest of the respective Loan Parties in the Collateral described therein. Except as contemplated hereby and by the Collateral Documents and except as may be required by the Uniform Commercial Code, no extraordinary filing or other action will be necessary to perfect or protect such Liens. 5.22 FRAUD AND ABUSE. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in liability for the Loan Parties and their Subsidiaries in excess of the Threshold Amount, neither any Loan Party and its Subsidiaries nor, to the knowledge of any Responsible Officer, any of their officers or directors, have engaged in any activities which are prohibited under federal Medicare and Medicaid statutes, 42 U.S.C. Section 1320a-7b, or 42 U.S.C. Section 1395nn or the regulations promulgated pursuant to such statutes or related state, local or provincial statutes or regulations, or which are prohibited by binding rules of professional conduct, including but not limited to the following: (a) knowingly and willfully making or causing to be made a false statement or representation of a material fact in any applications for any benefit or payment; (b) knowingly and willfully making or causing to be made any false statement or representation of a material fact for use in determining rights to any benefit or payment; (c) failing to disclose knowledge by a claimant of the occurrence of any event affecting 140 [Published CUSIP Number: ____] the initial or continued right to any benefit or payment on its own behalf or on behalf of another with the intent to secure such benefit or payment fraudulently; (d) knowingly and willfully soliciting or receiving any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind or offering to pay such remuneration (i) in return for referring an individual to a Person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part by Medicare, Medicaid or other applicable third party payors, or (ii) in return for purchasing, leasing or ordering or arranging for or recommending the purchasing, leasing or ordering of any good, facility, service, or item for which payment may be made in whole or in part by Medicare, Medicaid or other applicable third party payors. Notwithstanding the foregoing, the Loan Parties are aware of and have disclosed the existence of OIG Investigation. The Loan Parties believe that the programs described in the subpoena are in compliance with all applicable Laws. The Loan Parties are cooperating fully with the government inquiry. 5.23 LICENSING AND ACCREDITATION. Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in liability for the Loan Parties and their Subsidiaries in excess of the Threshold Amount, (a) each of the Loan Parties and its Subsidiaries has, to the extent applicable: (i) obtained and maintains in good standing all required licenses; and (ii) to the extent prudent and customary in the industry in which it is engaged, obtained and maintains accreditation from all generally recognized accrediting agencies; and (b) all such required licenses and accreditations are in full force and effect on the date hereof and have not been revoked or suspended or otherwise limited. 5.24 OTHER REGULATORY PROTECTION. As of the Closing Date, except for oxygen products, none of the Loan Parties and their Subsidiaries manufactures pharmaceutical products. As of the Closing Date, none of the Loan Parties and their Subsidiaries (a) participates in Medicare or Medicaid as a provider or supplier, rather, the Loan Parties and their Subsidiaries are manufacturers and sell to providers for purposes of Medicare, Medicaid and any other Medical Reimbursement Program, (b) is a party to any Medicare Provider Agreement or Medicaid Provider Agreement, or (c) bills for items or services to any Medical Reimbursement Program. Each of the Loan Parties and its Subsidiaries is in compliance with all applicable rules, regulations and other requirements of the Food and Drug Administration ("FDA"), the Federal Trade Commission ("FTC"), the Occupational Safety and Health Administration ("OSHA"), the Consumer Product Safety Commission, the United States Customs Service and the United States Postal Service and other state or federal regulatory authorities or jurisdictions in which such Loan Party or any of its Subsidiaries do business or distribute and market products, except to the extent that any such noncompliance, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Neither the FDA, the FTC, OSHA, the Consumer Product Safety Commission, nor any other such regulatory authority has requested (or, to the knowledge of any Responsible Officer, are considering requesting) any product recalls or other enforcement actions that (a) if not complied 141 [Published CUSIP Number: ____] with, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect or (b) with which the Loan Parties and their Subsidiaries have not complied within the time period allowed. 5.25 SWISS WITHHOLDING TAX. The Swiss Borrower represents and warrants that it does not have outstanding loans, facilities and/or private placements within the meaning of the Guidelines (including under the Loan Documents) in relation to which the aggregate number of creditors within the meaning of the Guidelines (including Lenders) who are not Qualifying Swiss Banks exceeds 20; provided that the Swiss Borrower shall not be in breach of this representation if such number of creditors is exceeded solely by reason of a breach by one or more Lenders of a confirmation contained in Section 3.01(i)(i) (Swiss Tax gross-up) or Section 11.06 (Successors and Assigns) or a failure by one or more Lenders to comply with their obligations under Section 11.06 (Successors and Assigns). In particular, the Swiss Borrower represents and warrants that it does not have and will not at any time have interest bearing accounts with respect to more than 20 creditors other than Qualifying Swiss Banks for an overall amount exceeding CHF 500,000 within the meaning of circular S-02.122.2 (4.99) of the Swiss Federal Tax Administration and therefore that it does not and will not qualify as a "bank" within the meaning of Article 9 Section 2 of the Swiss Withholding Tax Act. ARTICLE VI AFFIRMATIVE COVENANTS So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, each of the Loan Parties shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each Subsidiary to: 6.01 FINANCIAL STATEMENTS. Deliver to the Multicurrency Administrative Agent and each Lender, in form and detail satisfactory to the Multicurrency Administrative Agent and the Required Lenders: (a) on or prior to the earlier of the date that is (i) 5 days after the time period specified by the SEC under the Exchange Act for annual reporting or (ii) 90 days after the end of each fiscal year of the Company (commencing with the fiscal year ended December 31, 2006), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such financial statements to be audited and accompanied by (A) a report and opinion of a Registered Public Accounting Firm of nationally recognized standing, which report and opinion shall be prepared in accordance 142 [Published CUSIP Number: ____] with generally accepted auditing standards and applicable Securities Laws and shall not be subject to any "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit or with respect to the absence of any material misstatement and (B) an opinion of such Registered Public Accounting Firm independently assessing the Company's internal controls over financial reporting in accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing Standard No. 2, and Section 404 of Sarbanes-Oxley expressing a conclusion that contains no statement that there is a material weakness in such internal controls, except for such material weaknesses as to which the Required Lenders do not object; provided, however, that at any time the Company shall be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, delivery within the time period specified above of copies of the annual balance sheet and statements of income or operations, shareholders' equity and cash flows on Form 10-K for the Company and its Subsidiaries for such annual period as filed with the SEC shall be deemed to satisfy the requirements of this subsection (a); (b) on or prior to the earlier of the date that is (i) 5 days after the time period specified by the SEC under the Exchange Act for quarterly reporting or (ii) 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company (commencing with the fiscal quarter ended March 31, 2007), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal quarter and for the portion of the Company's fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such financial statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Company as fairly presenting the financial condition, results of operations, shareholders' equity and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; provided, however, that at any time the Company shall be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, delivery within the time period specified above of copies of the quarterly balance sheet and statements of income or operations, shareholders' equity and cash flows on Form 10-Q for the Company and its Subsidiaries for such annual period as filed with the SEC shall be deemed to satisfy the requirements of this subsection (b); and (c) within 45 days following the beginning of each fiscal year of the Company, an annual business plan and budget of the Company and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Company, in a form consistent with any business plan and budget delivered by the Company in connection with the closing of this Agreement, of a consolidated balance sheet and statements of income or operations and cash flows of the Company and its Subsidiaries on an annual basis for the immediately following fiscal year (including the fiscal year in which the Maturity Date for the Term B Facility occurs). 143 [Published CUSIP Number: ____] As to any information contained in materials furnished pursuant to Section 6.02(d), the Company shall not be separately required to furnish such information under Section 6.01(a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials described in Sections 6.01(a) and (b) above at the times specified therein. 6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Multicurrency Administrative Agent, each Lender and, with respect to delivery of the Compliance Certificate required by Section 6.02(b), the Australian Administrative Agent and the Canadian Administrative Agent, in form and detail satisfactory to the Multicurrency Administrative Agent and the Required Lenders: (a) concurrently with the delivery of the financial statements referred to in Section 6.01(b), a list of all registered IP Rights (or IP Rights for which an application has been submitted for registration) owned by each Loan Party (other than licenses of off-the-shelf IP Rights) that, to the knowledge of the Loan Parties, is valuable or is material to the operation of the business of any Loan Party; (b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Company; (c) promptly after any request by the Multicurrency Administrative Agent, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by Ernst & Young or the Company's successor independent accountants in connection with the accounts or books of any Loan Party or any of its Subsidiaries, or any audit of any of them; (d) promptly after the same are available in final form, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders (generally) of the Company, and copies of all annual, regular, periodic and special reports and registration statements which the Company has filed with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Multicurrency Administrative Agent pursuant hereto; (e) promptly after the furnishing thereof, copies of any statement or report furnished generally to the holders of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02; (f) within 30 days after the end of each fiscal year of the Company, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for 144 [Published CUSIP Number: ____] each Loan Party and its Subsidiaries and containing such additional information as the Multicurrency Administrative Agent, or any Lender through the Multicurrency Administrative Agent, may reasonably specify; (g) within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, (i) copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof and (ii) copies of any demand letter or other correspondence from the OIG or any other Governmental Authority with respect to the OIG Investigation; (h) not later than five Business Days after receipt thereof by any Loan Party, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any material instrument, indenture, loan or credit or similar agreement and, from time to time upon request by the Multicurrency Administrative Agent, such information and reports regarding such instruments, indentures and loan and credit and similar agreements as the Multicurrency Administrative Agent may reasonably request; (i) within 30 days after the end of each fiscal year of the Company, (i) a report supplementing Schedules 5.08(c), 5.08(d)(i) and 5.08(d)(ii), including an identification of all owned and leased real property disposed of by any Loan Party during such fiscal year, a list and description (including the street address, county or other relevant jurisdiction, state, record owner, book value thereof and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof) of all real property acquired or leased during such fiscal year and a description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete; (ii) a report supplementing Schedule 5.17, setting forth (A) a list of registration numbers for all patents, trademarks, service marks, trade names and copyrights awarded to any Loan Party during such fiscal year and (B) a list of all patent applications, trademark applications, service mark applications, trade name applications and copyright applications submitted by any Loan Party during such fiscal year and the status of each such application; and (iii) a report supplementing Schedules 5.08(e) and 5.13 containing a description of all changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete, each such report to be signed by a Responsible Officer of the Company and to be in a form reasonably satisfactory to the Multicurrency Administrative Agent; and (j) promptly, such additional information regarding the business, financial, legal or corporate affairs of any Loan Party or any Subsidiary thereof, or compliance with the terms of the Loan Documents, as any Administrative Agent or any Lender may from time to time reasonably request. Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may 145 [Published CUSIP Number: ____] be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company's website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Company's behalf on an Internet or intranet website, if any, to which each Lender and the Multicurrency Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Multicurrency Administrative Agent); provided that: (A) the Company shall deliver paper copies of such documents to the Multicurrency Administrative Agent or any Lender that requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Multicurrency Administrative Agent or such Lender and (B) the Company shall notify the Multicurrency Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Multicurrency Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Multicurrency Administrative Agent. Except for such Compliance Certificates, the Multicurrency Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Each of the Loan Parties hereby acknowledges that (1) the Multicurrency Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of a Loan Party hereunder (collectively, "Loan Party Materials"; it being understood and agreed that Loan Party Materials shall not include administrative notices such as Committed Loan Notices) by posting the Loan Party Materials on IntraLinks or another similar electronic system (the "Platform") and (2) certain of the Lenders (each, a "Public Lender") may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons' securities. Each of the Loan Parties hereby agrees (x) that all financial statements delivered pursuant to Sections 6.01(a) or (b), all Compliance Certificates delivered pursuant to Section 6.02(b), all information delivered pursuant to Sections 6.02(d), (e), (f) and (i) and all other Loan Party Materials delivered to the Multicurrency Administrative Agent and/or the Arrangers that is clearly and conspicuously marked "PUBLIC" shall be posted to that portion of the Platform designated "Public Investor" and the Loan Parties shall be deemed to have authorized the Administrative Agents, the Arrangers, the L/C Issuers and the Lenders to treat such Loan Party Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Loan Party Materials constitute Information, they shall be treated as set forth in Section 11.07); and (y) all other Loan Party Materials shall not be posted to that portion of the Platform designated "Public Investor." 146 [Published CUSIP Number: ____] 6.03 NOTICES. Promptly after acquiring knowledge thereof notify the Multicurrency Administrative Agent and each Lender: (a) of the occurrence of any Default; (b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of any Loan Party or any Subsidiary thereof; (ii) any dispute, litigation, investigation, proceeding or suspension between any Loan Party or any Subsidiary thereof and any Governmental Authority; (iii) the commencement of, or any material development in, any litigation or proceeding affecting any Loan Party or any Subsidiary thereof, including pursuant to any applicable Environmental Laws; or (iv) any tax assessment; (c) of the occurrence of any ERISA Event that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in liability for the Loan Parties and their Subsidiaries in excess of the Threshold Amount; (d) of any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof; (e) of the determination by the Registered Public Accounting Firm providing the opinion required under Section 6.01(a)(ii) (in connection with its preparation of such opinion) or the Company's determination at any time of the occurrence or existence of any Internal Control Event; and (f) of the (i) occurrence of any Disposition of property or assets for which the Company is required to make a mandatory prepayment pursuant to Section 2.05(b)(ii), (ii) occurrence of any sale of capital stock or other Equity Interests for which the Company is required to make a mandatory prepayment pursuant to Section 2.05(b)(iii), (iii) incurrence or issuance of any Indebtedness for which the Company is required to make a mandatory prepayment pursuant to Section 2.05(b)(iv), and (iv) receipt of any Extraordinary Receipt for which the Company is required to make a mandatory prepayment pursuant to Section 2.0(b)(v); (g) of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law; (h) of the institution of any investigation or proceeding against any Loan Party or any Subsidiary to suspend, revoke or terminate or which may result in the exclusion from any Medical Reimbursement Program; 147 [Published CUSIP Number: ____] (i) of any material development in or material change to the status of OIG Investigation; (j) of any Loan Party or Subsidiary becoming the subject of a pending civil or criminal investigation, criminal action or civil proposed debarment, exclusion or other sanctioning action related to any federal or state healthcare program; and (k) of any announcement by Moody's or S&P of any change or possible change in a Debt Rating or in the outlook with respect thereto. Each notice pursuant to Section 6.03 (other than Section 6.03(f) or (k)) shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. 6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all income and other material tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company or such Subsidiary; (b) all lawful claims which, if unpaid, would by law then become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness. 6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business (including, without limitation, licenses and certifications), except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect. 148 [Published CUSIP Number: ____] 6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear and casualty events excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities. 6.07 MAINTENANCE OF INSURANCE. (a) Maintain with financially sound and reputable insurance companies not Affiliates of the Company (other than the Insurance Subsidiary), insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons and providing for not less than 30 days' prior notice to the Multicurrency Administrative Agent of termination, lapse or cancellation of such insurance; provided that each of the Loan Parties and its Subsidiaries may self-insure for products liability in such amounts, with such deductibles and with such reserves on their balance sheet, and covering such risks as are customarily carried by manufacturing companies that are similar in size, have similar products liability exposure and self-insure such products liability or similar liabilities. (b) The Insurance Subsidiary shall conduct its insurance business in compliance with all applicable insurance laws, rules, regulations and orders and using sound actuarial principles. The insurance premiums and other expenses charged by the Insurance Subsidiary to any Loan Party or any of its Subsidiaries shall be reasonable and customary and in accordance with insurance Laws. The Company will provide the Multicurrency Administrative Agent and the Lenders copies of any outside actuarial reports prepared with respect to any projection, valuation or appraisal of the Insurance Subsidiary promptly after receipt thereof. 6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. Specifically, but without limiting the foregoing, and except where any such failure to comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (i) billing 149 [Published CUSIP Number: ____] policies, arrangements, protocols and instructions will comply with requirements of Law and will be administered by properly trained personnel; and (ii) any compensation arrangements, other arrangements with referring physicians, and any discount and rebate programs offered to customers will comply with applicable state and federal self-referral and anti-kickback laws, including without limitation 42 U.S.C. Section 1320a-7b(b)(1) - (b)(2) and 42 U.S.C. Section 1395nn. 6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Company or such Subsidiary, as the case may be. 6.10 INSPECTION RIGHTS. Permit representatives and independent contractors of the Multicurrency Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Loan Parties and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Company; provided, however, that when an Event of Default exists the Multicurrency Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time during normal business hours upon advance notice. 6.11 COVENANT TO GUARANTEE OBLIGATIONS AND GIVE SECURITY. (a) (x) Upon the formation or acquisition of any new direct or indirect (A) Domestic Subsidiary (other than any CFC or a Subsidiary that is held directly or indirectly by a CFC) by any Loan Party, (B) Foreign Subsidiary domiciled in the country of, and directly or indirectly owned by, a Foreign Loan Party or (C) any other Foreign Subsidiary to the extent, on a Pro Forma Basis after giving effect to such formation or acquisition, such Foreign Subsidiary holds at least 1% of Consolidated Total Assets or generates at least 1% of Consolidated Total Revenue and to the extent the Guarantee of such Foreign Subsidiary or the grant of Liens on the assets of such Foreign Subsidiary is not prohibited by applicable Law and would not result in materially adverse tax consequences for the Company and its Subsidiaries; (y) upon the acquisition of any property by any Loan Party, if such property, in the judgment of the Multicurrency Administrative Agent, shall not already be subject to a perfected first priority security interest in favor of the applicable Collateral Agent for the benefit of the Secured Parties; 150 [Published CUSIP Number: ____] or (z) upon the request of the Multicurrency Administrative Agent following the occurrence and during the continuance of an Event of Default, then in each case the Loan Parties shall (to the extent applicable), at the Loan Parties' expense: (i) within 10 days after such formation, acquisition or request, cause such Subsidiary to duly execute and deliver to the Multicurrency Administrative Agent a Joinder Agreement, in form and substance satisfactory to the Multicurrency Administrative Agent and each other applicable Administrative Agent, which shall include a description of the real and personal properties of such Subsidiary, in detail satisfactory to the Multicurrency Administrative Agent, (ii) within 15 days after such formation, acquisition or request, duly execute and deliver, or cause such Subsidiary to duly execute and deliver, to the Multicurrency Administrative Agent deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages or leasehold deeds of trust (with respect to any manufacturing facility or material property where the remaining term of the lease is greater than one year, subject to the consent of the applicable landlord (if required), which the Loan Parties shall use their good faith efforts (not including any financial accommodations) to obtain) and other security and pledge agreements, as specified by and in form and substance satisfactory to the Multicurrency Administrative Agent (including delivery of all pledged Equity Interests in and of such Subsidiary, and other instruments of the type specified in Section 4.01(e)), securing payment of all applicable Obligations under the Loan Documents and constituting Liens on all such real and personal properties, (iii) within 30 days after such formation, acquisition or request, take whatever action, and/or cause such Subsidiary to take whatever action, (including the recording of mortgages, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Multicurrency Administrative Agent to vest the applicable Collateral Agent (or in any representative of such Collateral Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of trust and security and pledge agreements delivered pursuant to this Section 6.11, enforceable against all third parties in accordance with their terms, (iv) within 60 days after such formation, acquisition or request, deliver to the Multicurrency Administrative Agent, upon the request of the Multicurrency Administrative Agent in its sole discretion, a signed copy of a favorable opinion, addressed to the Multicurrency Administrative Agent, the applicable Collateral Agent and the other Secured Parties, of counsel(s) for the Loan Parties acceptable to the Multicurrency Administrative Agent as to the matters contained in clauses (i), (ii) and (iii) above, and as to such other matters as the Multicurrency Administrative Agent may reasonably request, 151 [Published CUSIP Number: ____] (v) as promptly as practicable after such formation, acquisition or request, deliver, upon the request of the Multicurrency Administrative Agent in its sole discretion, to the Multicurrency Administrative Agent with respect to each parcel of real property owned or held by the entity that is the subject of such formation or acquisition title reports, surveys and engineering, soils and other reports, and environmental assessment reports, each in scope, form and substance satisfactory to the Multicurrency Administrative Agent, provided, however, that to the extent that any Loan Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real property, such items shall, promptly after the receipt thereof, be delivered to the Multicurrency Administrative Agent, and (vi) as promptly as practicable after such formation, acquisition or request, deliver all organizational or charter documents, resolutions, certificates, incumbency certificates, financial statements and such other information as the Multicurrency Administrative Agent or applicable Collateral Agent may require, it its sole discretion. (b) At any time upon request of the Multicurrency Administrative Agent, promptly execute and deliver any and all further instruments and documents and take all such other action as the Multicurrency Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust (with respect to any manufacturing facility or material property where the remaining term of the lease is greater than one year, subject to the consent of the applicable landlord (if required), which the Loan Parties shall use their good faith efforts (not including any financial accommodations) to obtain) and other security and pledge agreements or similar agreements. (c) Notwithstanding anything in this Agreement to the contrary (including Section 11.01), any deadline set forth in this Section 6.11 for the delivery of any document, agreement or instrument may be extended by the Multicurrency Administrative Agent in its sole reasonable discretion, without the approval or consent of the Lenders or Required Lenders. 6.12 COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws, in each case unless the failure to take such action could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or result in liability for the Loan Parties and their Subsidiaries in excess of the Threshold Amount; provided, however, that neither any Loan Party 152 [Published CUSIP Number: ____] nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP. 6.13 PREPARATION OF ENVIRONMENTAL REPORTS. At the request of the Multicurrency Administrative Agent or the Required Lenders from time to time, (a) provide to the Lenders any available environmental site assessment report for any of its properties described in such report and (b) with respect to any property with respect to which there has been a material violation of Environmental Laws, provide to the Lenders within 60 days after such request, at the expense of the Loan Parties, an environmental site assessment report for any of its properties described in such request, prepared by an environmental consulting firm acceptable to the Multicurrency Administrative Agent, indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance, removal or remedial action in connection with any Hazardous Materials on such properties; without limiting the generality of the foregoing, if the Multicurrency Administrative Agent determines at any time that a material risk exists that any such report will not be provided within the time referred to above, the Multicurrency Administrative Agent may retain an environmental consulting firm to prepare such report at the expense of the Loan Parties, and the Loan Parties hereby grant and agree to cause any Subsidiary that owns any property described in such request to grant at the time of such request to the Multicurrency Administrative Agent, the Lenders, such firm and any agents or representatives thereof an irrevocable non-exclusive license, subject to the rights of tenants, to enter onto their respective properties to undertake such an assessment. 6.14 FURTHER ASSURANCES. Promptly upon request by the Multicurrency Administrative Agent, or any Administrative Agent, Collateral Agent or Lender through the Multicurrency Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, (b) provide a local counsel opinion in form and substance satisfactory to the Multicurrency Administrative Agent with respect to any Domestic Subsidiary (other than the Insurance Subsidiary and the Receivables Subsidiary) for which an opinion was not delivered on the Closing Date to the extent the assets of such Domestic Subsidiary as reflected in the most recent financial statements delivered pursuant to Section 6.01(a) or (b) exceed 2% of Consolidated Total Assets, (c) if the book value or fair market value of the assets of the Foreign Loan Parties organized in Denmark at any time exceeds 2% of Consolidated Total Assets, promptly execute and deliver such Collateral Documents with respect to such assets, together with any requested corporate documentation and opinion of counsel, as any such Person may request, (d) execute and deliver Account Control Agreements with respect to any deposit account or securities account of the Loan Parties located in Canada and (e) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Multicurrency Administrative Agent, or any Administrative Agent, Collateral Agent or Lender through the Multicurrency Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the 153 [Published CUSIP Number: ____] fullest extent permitted by applicable law, subject any Loan Party's properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party is or is to be a party. 6.15 COMPLIANCE WITH TERMS OF LEASEHOLDS. Make all payments and otherwise perform all obligations in respect of all leases of real property to which any Loan Party or any of its Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the Multicurrency Administrative Agent of any default by any party with respect to such leases and cooperate with the Multicurrency Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect. 6.16 LIEN SEARCHES. Promptly following receipt of the acknowledgment copy of any financing statements filed under the Uniform Commercial Code in any jurisdiction by or on behalf of the Secured Parties, deliver to the Multicurrency Administrative Agent completed requests for information listing such financing statement and all other effective financing statements filed in such jurisdiction that name any Loan Party as debtor, together with copies of such other financing statements. 6.17 MATERIAL CONTRACTS. Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, and enforce each such Material Contract in accordance with its terms, in each case unless (a) the applicable Loan Party or Subsidiary determines in the exercise of its good faith judgment that any such action is not in the best business interests of such Loan Party or Subsidiary and (b) the failure of such Loan Party or Subsidiary to take any such action would not be materially adverse to the interests of the Lenders. 6.18 DESIGNATION AS SENIOR DEBT. Designate all Obligations as "Designated Senior Indebtedness" under, and defined in, the Convertible Note Documents and all supplemental indentures thereto. 154 [Published CUSIP Number: ____] 6.19 MAINTENANCE OF DEBT RATINGS. Maintain at all times Debt Ratings with each of Moody's and S&P. 6.20 POST-CLOSING COVENANTS. (a) Account Control Agreements. Within 90 days after the Closing Date (or such extended period of time as agreed to by the Arrangers), with respect to each deposit account and securities account of the Loan Parties (other than the Foreign Loan Parties to the extent such account is located in Canada (for which no account control agreement will be required hereunder on the Closing Date) or to the extent any such account is located outside the United States and Canada and a control agreement is not required for the perfection of a security interest therein), the Loan Parties shall have delivered to the Multicurrency Administrative Agent account control agreements executed by the applicable Loan Parties, the applicable Collateral Agent and appropriate depositary institutions or securities intermediaries ("Account Control Agreements"), in each case in form and substance satisfactory to the Arrangers. After the initial Account Control Agreements are delivered to the Multicurrency Administrative Agent in accordance with the previous sentence, the Loan Parties shall maintain each of their deposit accounts and securities accounts of the Loan Parties (other than the Foreign Loan Parties to the extent any such account is located outside the United States and a control agreement is not required for the perfection of a security interest therein) with financial institutions that have entered into Account Control Agreements in form and substance satisfactory to the Multicurrency Administrative Agent. (b) Leasehold Mortgages. Within 90 days after the Closing Date (or such extended period of time as agreed to by the Arrangers), (i) to the extent the necessary landlord consents are obtained in accordance with the terms of clause (ii) below, the Loan Parties shall deliver to the applicable Collateral Agents fully executed and, to the extent required, notarized leasehold deeds of trust and leasehold mortgages in substantially the form of Exhibit G (with such changes as may be satisfactory to the Arrangers and their counsel to account for local law matters) and covering the properties listed on Schedule 6.20(b) (the "Leasehold Mortgaged Properties"), duly executed by the appropriate Loan Party encumbering the leasehold interest of such Loan Party, and evidence that such Mortgages are in form suitable for filing or recording in all filing or recording offices that the Arrangers may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien (subject to Permitted Liens and any Liens or encumbrances that are reflected in the Mortgage Policies with respect to such Leasehold Mortgaged Properties) on the property described therein in favor of the applicable Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid; (ii) use commercially reasonable efforts not requiring expenditure of money to deliver to the applicable Collateral Agent estoppel and consent agreements, in form and substance satisfactory to the Arrangers, executed by each of the lessors of the leased real properties listed on Schedule 6.20(b), along with 155 [Published CUSIP Number: ____] (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Arrangers' reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Arrangers; and (iii) such evidence of the insurance, appraisals (to the extent available), Mortgage Policies and other information with respect to the Leasehold Mortgaged Properties as the Arrangers may require that are consistent with the requirements set forth in Section 4.01(f). (c) IP Chain of Title Issues and Filings. Within 90 days after the Closing Date (or such extended period of time as agreed to by the Arrangers), to the extent required by the Arrangers, the Loan Parties shall correct any chain of title issues in the records of the United States Patent and Trademark Office (or any foreign equivalent thereof) with respect to the IP Rights of the Loan Parties and execute and deliver any notices of grant of security interest in IP Rights required by the Arrangers in connection with such chain of title corrections. (d) Florida Survey and Title Endorsement. Within 45 days after the Closing Date (or such extended period of time as agreed to by the Arrangers), the Loan Parties shall deliver to the Multicurrency Collateral Agent, with respect to the Mortgaged Property located in Florida, a survey satisfying the requirements set forth in Section 4.01(f)(ii) and an endorsement to the Mortgage Policy with respect to such Mortgaged Property removing any survey exception therein, each in form and substance reasonably satisfactory to the Multicurrency Collateral Agent. (e) Estoppel Letters. Within 45 days after the Closing Date (or such extended period of time as agreed to by the Arrangers), to the extent required by the Arrangers, estoppel letters executed by creditors of the Loan Parties and their Subsidiaries with respect to PPSA financing statements filed by such creditors, which estoppel letters confirm that the collateral subject to such PPSA financing statements is limited to specific equipment. (f) Intercompany Notes. Within 45 days after the Closing Date (or such extended period of time as agreed to by the Arrangers), the Loan Parties shall deliver to the applicable Collateral Agent any intercompany promissory note required to be delivered by the terms of the Loan Documents and not delivered on or prior to the Closing Date, together with an allonge thereto in form and substance satisfactory to such Collateral Agent. 156 [Published CUSIP Number: ____] (g) Stock Certificates. Within 45 days after the Closing Date (or such extended period of time as agreed to by the Arrangers), the Loan Parties shall deliver to the Multicurrency Collateral Agent (i) all certificates (if any) evidencing the Equity Interests of the Loan Parties organized in England and the first-tier Foreign Subsidiaries of the Domestic Loan Parties to the extent such certificates are required to be delivered by the Collateral Documents and have not been delivered on or prior to the Closing Date, together with any appropriate endorsement to such certificates in form and substance reasonable satisfactory to the Multicurrency Collateral Agent, and (ii) updated stock certificates for the Australian Borrower correcting the listed owner thereof. ARTICLE VII NEGATIVE COVENANTS So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, each of the Loan Parties shall not, nor shall it permit any Subsidiary to, directly or indirectly: 7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the Uniform Commercial Code of any jurisdiction a financing statement that names any Loan Party or any of its Subsidiaries as debtor, or assign any accounts or other right to receive income, other than the following: (a) Liens pursuant to any Loan Document; (b) Liens existing on the date hereof and listed on Schedule 5.08(b) and any renewals or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 7.02(e), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(e); (c) Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; (d) Liens created and maintained in the ordinary course of business which are not material in the aggregate, which would not have a Material Adverse Effect and which (i) constitute carriers', warehousemen's, mechanics', materialmen's, repairmen's, landlord's or other like Liens (or the foreign equivalent of such Liens) arising in the ordinary course of business which are not overdue for a period of more than 30 days or 157 [Published CUSIP Number: ____] which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person, (ii) pledges or deposits in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA, (iii) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business, (iv) constitute a right of title retention in connection with the acquisition of goods in the ordinary course of business on the supplier's usual terms of sale where there is no default in connection with the relevant acquisition, (v) constitute a right of retention of a debtor of such Person with respect to goods of such Person held by such debtor and in connection with such Person has not paid its obligations owing to such debtor, (vi) constitute Liens over stock-in-trade to secure the purchase price of such stock-in-trade in the ordinary course of business, (vii) constitute a statutory right of set-off, (viii) constitute an unregistered statutory inchoate Lien, (ix) constitute rights reserved to or vested in Governmental Authorities by statutory provisions or by the terms of leases, licenses, franchises, grants or permits, which affect any land, to terminate the leases, licenses, franchises, grants or permits or to require annual or other periodic payments as a condition of the continuance thereof, (x) constitute securities to public utilities or to any municipalities or other Governmental Authorities when required by the utility, municipality or Governmental Authority or other public authority in connection with the supply of services or utilities to a Loan Party or any Subsidiary thereof and (xi) consist of royalties payable with respect to any asset or property of any Loan Party or any Subsidiary thereof existing as of the Closing Date; (e) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which either are in existence on the Closing Date or, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person; (f) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h); (g) Liens securing Indebtedness permitted under Section 7.02(i); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition; (h) Liens in favor of a Loan Party; provided that the Loan Parties hereby agree that any such Lien shall be subordinated and second in priority to the Liens granted to the Collateral Agents; (i) statutory Liens of vendors in foreign jurisdictions; 158 [Published CUSIP Number: ____] (j) Liens granted by the Insurance Subsidiary to the extent required by applicable Laws; (k) leases and subleases of real property in the ordinary course of business; (l) Liens granted to each of the trustees under the Senior Note Documents and the Convertible Note Documents on money and property received and held by each such trustee from the Company as regularly scheduled payments thereunder in accordance with the terms of the Senior Note Documents and Convertible Note Documents as in effect on the Closing Date; and (m) other Liens (A) on assets of the Loan Parties securing Indebtedness outstanding in an aggregate principal amount not to exceed $10,000,000 and (B) on assets of Subsidiaries that are not Loan Parties securing Indebtedness outstanding in an aggregate principal amount not to exceed $15,000,000; provided that no such Lien shall extend to or cover any Collateral. 7.02 INDEBTEDNESS. Create, incur, assume or suffer to exist any Indebtedness, except: (a) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; (b) Indebtedness evidenced by (i) the Senior Notes and (ii) the Convertible Notes and any refinancing thereof in accordance with the terms of Section 7.15(f); provided that the aggregate principal amount of (A) the Senior Notes or any refinancing thereof shall not exceed $175,000,000 and (B) the Convertible Notes and any refinancing thereof shall not exceed $135,000,000; (c) Indebtedness, to the extent outstanding as of the date hereof, of a Subsidiary of the Company owed to the Company or a wholly-owned Subsidiary of the Company, which Indebtedness shall (i) in the case of Indebtedness owed to a Loan Party, constitute "Pledged Debt" under the Security Agreement and (ii) be otherwise permitted under the provisions of Section 7.03; (d) Indebtedness under the Loan Documents; (e) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized 159 [Published CUSIP Number: ____] thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension; provided further, that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate; (f) (i) Guarantees of any Domestic Loan Party in respect of Indebtedness otherwise permitted hereunder of a Domestic Loan Party; (ii) Guarantees of any Foreign Loan Party in respect of Indebtedness otherwise permitted hereunder of a Foreign Loan Party; and (iii) Guarantees of any Subsidiary (other than a Loan Party) in respect of Indebtedness otherwise permitted hereunder of the Company or any of its Subsidiaries; (g) (i) Indebtedness owed by any Domestic Loan Party to the Company and its Subsidiaries, (ii) Indebtedness owed by Foreign Loan Parties to other Foreign Loan Parties and their Subsidiaries, (iii) intercompany Indebtedness among Foreign Subsidiaries incurred for cash management pooling purposes in the ordinary course of business and consistent with past practices, (iv) Indebtedness owed by Subsidiaries of the Company that are not Loan Parties to other Subsidiaries that are not Loan Parties and (v) so long as no Default has occurred and is continuing at the time such Indebtedness is incurred or would result from such Indebtedness, Indebtedness owed by wholly-owned Subsidiaries (other than the Insurance Subsidiary and the Receivables Subsidiary) to Loan Parties in an aggregate amount not to exceed, when combined with Investments made pursuant to Section 7.03(c)(vi), $20,000,000; (h) Indebtedness owed to third party financing companies in the form of limited recourse obligations that finance receivables of customers of the Loan Parties and their Subsidiaries in the ordinary course of business; provided that such Indebtedness shall not exceed at any one time outstanding the lesser of (i) 75% of the total owed by the customers of the Loan Parties and their Subsidiaries to such financing companies and (ii) (A) if the Consolidated Leverage Ratio (as set forth in the most recent Compliance Certificate delivered hereunder) is equal to or greater than 4.25:1.0, $65,000,000 and (B) if the Consolidated Leverage Ratio (as set forth in the most recent Compliance Certificate delivered hereunder) is less than 4.25:1.0, $80,000,000; (i) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(g); provided, however, that the aggregate amount of all such Indebtedness (other than such Indebtedness outstanding on the Closing Date and set forth on Schedule 7.02) at any one time outstanding shall not exceed $15,000,000; (j) Indebtedness under performance, surety, statutory or appeal bonds or with respect to workers' compensation claims or other bonds permitted under Section 7.01(d) 160 [Published CUSIP Number: ____] and incurred in the ordinary course of business; provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $2,000,000; (k) Indebtedness constituting customary indemnification obligations under purchase agreements; (l) other Indebtedness (i) of the Loan Parties in an aggregate amount at any one time outstanding not to exceed $10,000,000 and (ii) of the Subsidiaries (other than the Insurance Subsidiary and the Receivables Subsidiary) that are not Loan Parties in an aggregate amount at any one time outstanding not to exceed $15,000,000; and (m) Subordinated Debt in an aggregate amount at any one time outstanding not to exceed $150,000,000. 7.03 INVESTMENTS. Make or hold any Investments, except: (a) Investments held by the Company and its Subsidiaries in the form of Cash Equivalents; (b) advances to officers, directors and employees of the Company and Subsidiaries in an aggregate amount not to exceed $1,000,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes; (c) (i) Investments by the Company and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Company and its Subsidiaries in Domestic Loan Parties, (iii) additional Investments by the Foreign Loan Parties and their Subsidiaries in Foreign Loan Parties, (iv) additional Investments by Subsidiaries of the Company that are not Loan Parties in other Subsidiaries that are not Loan Parties, (v) so long as no Event of Default has occurred and is continuing or would result from such Investment, Investments by the Company and its Subsidiaries in the Insurance Subsidiary in an aggregate amount not to exceed 250% of the amount required under Vermont Law and (vi) so long as no Default has occurred and is continuing or would result from such Investment, additional Investments by the Loan Parties and their Subsidiaries in an aggregate amount not to exceed $20,000,000; (d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss; (e) Guarantees permitted by Section 7.02; 161 [Published CUSIP Number: ____] (f) Investments existing on the date hereof (other than those referred to in Section 7.03(c)(i)) and set forth on Schedule 5.08(e); (g) Investments by the Company in Swap Contracts permitted under Section 7.02(a); and (h) the purchase or other acquisition of all of the Equity Interests in, or all or substantially all of the property of, any Person that, upon the consummation thereof, will be wholly-owned directly by the Company or one or more of its wholly-owned Subsidiaries (including as a result of a merger or consolidation) provided that, with respect to each purchase or other acquisition made pursuant to this Section 7.03(h): (i) any such newly-created or acquired Subsidiary shall comply with the requirements of Section 6.11; (ii) the lines of business of the Person to be (or the property of which is to be) so purchased or otherwise acquired shall be substantially related or incidental to the principal businesses of the Company and its Subsidiaries in the ordinary course; (iii) such purchase or other acquisition shall not include or result in any contingent liabilities that could reasonably be expected to be material to the business, financial condition, operations or prospects of the Company and its Subsidiaries, taken as a whole (as determined in good faith by the board of directors (or the persons performing similar functions) of the Company or such Subsidiary if the board of directors is otherwise approving such transaction and, in each other case, by a Responsible Officer); (iv) the total cash and noncash consideration (including the fair market value of all Equity Interests issued or transferred to the sellers thereof, all indemnities, earnouts and other contingent payment obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers thereof, all write-downs of property and reserves for liabilities with respect thereto and all assumptions of debt, liabilities and other obligations in connection therewith) paid by or on behalf of the Company and its Subsidiaries for any such purchase or other acquisition, when aggregated with the total cash and noncash consideration paid by or on behalf of the Company and its Subsidiaries for all other purchases and other acquisitions made by the Company and its Subsidiaries pursuant to this Section 7.03(h), shall not exceed the following: (A) if the Consolidated Leverage Ratio is greater than or equal to 4.5:1.0 after giving effect to such purchase or acquisition on a Pro Forma Basis, (1) for fiscal year 2007, (x) $15,000,000 for any individual acquisition, (y) $15,000,000 for all foreign acquisitions and (z) for all acquisitions (whether foreign or domestic), the greater of (I) $15,000,000 and (II) the amount of Capital Expenditures that are permitted under 162 [Published CUSIP Number: ____] Section 7.12 for fiscal year 2007 to the extent not expended during such fiscal year; and (2) for any fiscal year after 2007, (x) $15,000,000 for any individual acquisition, (y) $15,000,000 for all foreign acquisitions and (z) for all acquisitions (whether foreign or domestic), the greater of (I) $15,000,000 and (II) the amount of Capital Expenditures that are permitted under Section 7.12 for the previous fiscal year (plus any Capex Carryover Amount available during such previous fiscal year) to the extent not expended during such previous fiscal year, and (B) if the Consolidated Leverage Ratio is less than 4.5:1.0 after giving effect to such purchase or acquisition on a Pro Forma Basis, the following amounts for any individual acquisition, all foreign acquisitions and all acquisitions (whether foreign or domestic) based on the Consolidated Leverage Ratio after giving effect to such purchase or acquisition on a Pro Forma Basis:
Total Individual Foreign Total Acquisition Consolidated Leverage Ratio Acquisition Limit Acquisition Limit Limit --------------------------- ----------------- ----------------- ----- > 4.0:1.0 but < 4.5:1.0 $15,000,000 $25,000,000 $25,000,000 > 3.5:1.0 but < 4.0:1.0 $25,000,000 $50,000,000 $75,000,000 > 3.0:1.0 but < 3.5:1.0 $50,000,000 $75,000,000 $125,000,000 < 3.0:1.0 $50,000,000 $100,000,000 $200,000,000
(v) immediately before and immediately after giving effect to such purchase or acquisition on a Pro Forma Basis, (A) no Default shall have occurred and be continuing; (B) there shall be at least (1) $40,000,000 of Accessible Borrowing Availability if the Consolidated Leverage Ratio is greater than or equal to 4.5:1.0 and (2) $25,000,000 of Accessible Borrowing Availability if the Consolidated Leverage Ratio is less than 4.5:1.0; and (C) the Company and its Subsidiaries shall be in compliance on a Pro Forma Basis with all of the covenants set forth in Section 7.11, such compliance to be determined on the basis of the financial information most recently delivered to the Multicurrency Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b); and (vi) the Company shall have delivered to the Multicurrency Administrative Agent and each Lender, at least five Business Days prior to the date on which any such purchase or other acquisition involving total cash and non cash consideration in excess of $10,000,000 is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Multicurrency Administrative Agent and the Required Lenders, certifying that all of the requirements set forth in this Section 7.03(h) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; and 163 [Published CUSIP Number: ____] (vii) if the Consolidated Leverage Ratio is greater than or equal to 4.5:1.0 after giving effect to such purchase or acquisition on a Pro Forma Basis, no third-party Indebtedness shall be incurred or assumed in connection with, or to finance the purchase price for, such purchase or acquisition. 7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom: (a) any Subsidiary may merge with (i) the Company, provided that the Company shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that (A) when any wholly-owned Subsidiary is merging with another non-wholly owned Subsidiary, such wholly-owned Subsidiary shall be the continuing or surviving Person, (B) when any Foreign Borrower is merging with another Subsidiary that is not a Foreign Borrower or a U.S. Loan Party, such Foreign Borrower shall be the continuing or surviving Person, (C) when any U.S. Guarantor is merging with another Subsidiary (other than a Foreign Borrower), a U.S. Guarantor shall be the continuing or surviving Person, (D) when any Foreign Guarantor (other than a Domestic Loan Party) is merging with another Subsidiary, a Foreign Guarantor shall be the continuing or surviving Person and (E) without the prior consent of the Multicurrency Administrative Agent, (1) no Foreign Borrower shall merge with another Foreign Borrower and (2) no Foreign Loan Party shall merge with a Domestic Loan Party; (b) any Loan Party (other than the Company) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or to another Domestic Loan Party (other than the Company) and any Foreign Guarantor may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Foreign Guarantor; (c) any Subsidiary that is not a Loan Party may dispose of all or substantially all its assets (including any Disposition that is in the nature of a liquidation) to (i) another Subsidiary that is not a Loan Party or (ii) to a Loan Party; and (d) in connection with any acquisition permitted under Section 7.03, any Subsidiary of the Company may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned Subsidiary of the Company and (ii) in the case of any such merger to which any Loan Party (other than the Company) is a party, such Loan Party is the surviving Person. 7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to make any Disposition, except: 164 [Published CUSIP Number: ____] (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business; (b) Dispositions of inventory in the ordinary course of business; (c) Dispositions constituting conversion of Cash Equivalents into other Cash Equivalents; (d) Dispositions constituting casualty events; (e) Grants of Permitted Liens; (f) Waivers of contract rights in the ordinary course of business (g) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (h) Dispositions of property by any Subsidiary to the Company or to a wholly-owned Subsidiary; provided that (i) if the transferor of such property is a Domestic Guarantor, the transferee thereof must either be the Company or a Domestic Loan Party and (ii) if the transferor of such property is a Foreign Guarantor, the transferee thereof must be a Loan Party; (i) Dispositions permitted by Section 7.04; (j) Dispositions of Customer Leases in connection with Vendor Financings; (k) Sale and leasebacks of assets in an aggregate amount not to exceed $35,000,000; (l) Dispositions by the Company and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the aggregate book value of all property Disposed of in reliance on this clause (f) in any fiscal year shall not exceed 5% of Consolidated Total Assets as of the last fiscal year end and (iii) at least 80% of the purchase price for such asset shall be paid to the Company or such Subsidiary in cash. 7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (a) each Subsidiary may make Restricted Payments to the Company; each Domestic Guarantor may make Restricted Payments to other Domestic Guarantors; each 165 [Published CUSIP Number: ____] Foreign Guarantor may make Restricted Payments to Foreign Borrowers or other Foreign Guarantors; and each Subsidiary that is not a Loan Party may make Restricted Payments to other Subsidiaries, in each case ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (b) the Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) except to the extent the Net Cash Proceeds thereof are required to be applied to the prepayment of the Loans pursuant to Section 2.05(b)(iii), the Company and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests; (d) the Company may repurchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company held by any current or former officers, directors or employees of the Company or any of its Subsidiaries (or permitted transferees of such current or former officers, directors or employees) pursuant to the terms of agreements (including employment agreements) or plans approved by the Company's Board of Directors, including any such repurchase, redemption, acquisition or retirement of shares of such Capital Stock that is deemed to occur upon the exercise of stock options, restricted shares or similar rights if such shares represent all or a portion of the exercise price or are surrendered in connection with satisfying federal income tax obligations; provided, however, that the aggregate amount of such repurchases, redemptions, retirements and acquisitions pursuant to this subsection (d) (other than of shares of such Capital Stock that are deemed to occur upon the exercise of stock options, restricted shares or similar rights if such shares represent all or a portion of the exercise price or are surrendered in connection with satisfying federal income tax obligations) will not, in the aggregate, exceed $2,500,000 per fiscal year (with unused amounts in any fiscal year being carried over to succeeding fiscal years subject to a maximum of $5,000,000 in any fiscal year); (e) the Company may declare and make dividend payments with respect to its common Equity Interests in an amount not to exceed $2,000,000 in any fiscal year; provided that, prior to the declaration of any such dividend, the Company shall demonstrate to the satisfaction of the Multicurrency Administrative Agent that after giving effect to such dividend payments on a Pro Forma Basis, the Loan Parties shall be in compliance with each of the financial covenants set forth in Section 7.11. 7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of business other than those lines of business conducted by the Company and its Subsidiaries on the date hereof and any business that, in the good faith judgment of the Board of Directors of the Company, are reasonably related, ancillary, supplementary or complimentary thereto, or reasonable extensions thereof. 166 [Published CUSIP Number: ____] 7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any kind with any Affiliate of a Loan Party or any Subsidiary thereof, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such Loan party or such Subsidiary as would be obtainable by such Loan Party or such Subsidiary at the time in a comparable arm's length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to (a) transactions between or among the Multicurrency Loan Parties, (b) transactions between or among the Foreign Loan Parties or (c) compensation arrangements with executive officers of the Company that are approved by the Board of Directors of the Company or a committee of independent directors and are customary and competitive (as reasonably determined by such Board of Directors or committee after receiving recommendations from the Company's independent compensation consultants). 7.09 RESTRICTIONS WITH RESPECT TO INTERCORPORATE TRANSFERS; BURDENSOME AGREEMENTS; OTHER NEGATIVE PLEDGES. Enter into or permit to exist any Material Contract (other than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to, or pay any Indebtedness or other obligations owing to, any Loan Party or to otherwise transfer property to, invest in or make loans or advances to any Loan Party, except for (A) any limitation set forth in the Senior Note Documents or the Convertible Note Documents and (B) any agreement in effect (1) on the date hereof and set forth on Schedule 7.09 or (2) at the time any Subsidiary becomes a Subsidiary of the Company, so long as such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary of the Company, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrowers or (iii) of any Loan Party or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided, however, that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness (A) permitted under Section 7.02(b) so long as such negative pledge does not prohibit the Guaranty or the Liens granted by the Loan Parties pursuant to the Loan Documents and is no more restrictive than limitations set forth in the Loan Documents or (B) permitted under Section 7.02(i) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person. 7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry margin stock (within the meaning of Regulation U of the FRB), to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose, (b) in contravention of any Law or any Loan Document or (c) for any purpose other than general corporate purposes. 167 [Published CUSIP Number: ____] 7.11 FINANCIAL COVENANTS. (a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Company to be less than the ratio set forth below opposite such fiscal quarter:
Minimum Consolidated Interest Four Fiscal Quarters Ending Coverage Ratio - --------------------------- -------------- Closing Date through September 30, 2007 2.00 to 1.00 October 1, 2007 through September 30, 2008 2.25 to 1.00 October 1, 2008 through September 30, 2009 2.50 to 1.00 October 1, 2009 until the Term B Maturity Date 3.00 to 1.00
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company to be greater than the ratio set forth below opposite such quarter:
Maximum Consolidated Leverage Four Fiscal Quarters Ending Ratio - --------------------------- ----- Closing Date through September 30, 2007 6.00 to 1.00 October 1, 2007 through September 30, 2008 5.75 to 1.00 October 1, 2008 through September 30, 2009 5.00 to 1.00 October 1, 2009 through September 30, 2010 4.00 to 1.00 October 1, 2010 through September 30, 2011 3.50 to 1.00 October 1, 2011 until the Term B Maturity Date 3.00 to 1.00
(c) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter of the Company to be less than the ratio set forth below opposite such fiscal quarter:
Minimum Consolidated Fixed Charge Four Fiscal Quarters Ending Coverage Ratio - --------------------------- -------------- Closing Date through September 30, 2007 1.10 to 1.00 October 1, 2007 through September 30, 2008 1.30 to 1.00 October 1, 2008 through September 30, 2009 1.40 to 1.00 October 1, 2009 through September 30, 2010 1.60 to 1.00 October 1, 2010 through September 30, 2011 1.70 to 1.00 October 1, 2011 until the Term B Maturity Date 1.80 to 1.00
7.12 CAPITAL EXPENDITURES. Make or become legally obligated to make any Capital Expenditure, except for Capital Expenditures (a) made with insurance proceeds from (i) casualty events, (ii) condemnation awards, (iii) sale leasebacks permitted hereunder, (iv) Dispositions permitted hereunder and (v) like-kind exchanges under Section 1031 of the Code and (b) in the ordinary course of business 168 [Published CUSIP Number: ____] not exceeding $30,000,000 in the aggregate for the Company and its Subsidiaries during each fiscal year (commencing with fiscal year 2007); provided, however, that so long as no Default has occurred and is continuing or would result from such expenditure, any portion of any amount set forth above, if not expended in the fiscal year for which it is permitted above, may be carried over for expenditure solely in the next following fiscal year (the "Capex Carryover Amount"); and provided, further, if any such amount is so carried over, it will be deemed used in the applicable subsequent fiscal year after the amount set forth opposite such fiscal year above. 7.13 AMENDMENTS OF ORGANIZATION DOCUMENTS. Amend any of its Organization Documents in a manner which adversely affects the Lenders. 7.14 ACCOUNTING CHANGES. Make any change in (a) accounting policies or reporting practices, except as required by GAAP, or (b) its fiscal year. 7.15 PREPAYMENTS, ETC. OF INDEBTEDNESS. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Indebtedness, or make any other payment of Subordinated Debt, except (a) the prepayment of the Credit Extensions in accordance with the terms of this Agreement, (b) regularly scheduled or required repayments or redemptions of Indebtedness set forth in Schedule 7.02 and refinancings and refundings of such Indebtedness in compliance with Section 7.02(e), (c) so long as no Event of Default has occurred and is continuing, repayments of Indebtedness permitted by Section 7.02(a) and Section 7.02(h)-(k) in the ordinary course of business, (d) regularly scheduled interest payments on the Senior Notes, (e) so long as no Default has occurred and is continuing or would be caused thereby, (i) regularly scheduled interest payments on the Convertible Notes, (ii) cash settlement of fractional shares upon the conversion of any Convertible Note and (iii) issuances of stock as a result of the conversion of any Convertible Note into stock and (f) the redemption or cash settlement of the Convertible Notes by the Company through the exercise of its call rights, or the conversion of the Convertible Notes into cash at the option of the Company, in accordance with the terms of the Convertible Note Documents with the proceeds of (A) Subordinated Debt (including new convertible senior subordinated debentures) on terms and conditions no less onerous than in the current Convertible Note Documents or otherwise reasonably acceptable to the Arrangers, (B) senior secured Indebtedness permitted by the terms of Section 7.02 (other than Indebtedness under this Agreement); provided that, after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis, the ratio of EBITDA to Indebtedness of the Company and its Subsidiaries that is secured by a first priority Lien shall not exceed 2.00:1.00, (C) senior unsecured debt; provided that, after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis, the Consolidated Leverage Ratio shall be less than 2.50:1.00 and (D) cash on hand; provided that, after giving effect to such payments on a Pro Forma Basis, the Consolidated Leverage Ratio shall be less than 2.00:1.00. 169 [Published CUSIP Number: ____] 7.16 AMENDMENT, ETC. OF MATERIAL CONTRACTS AND INDEBTEDNESS. (a) Cancel or terminate any Material Contract or consent to or accept any cancellation or termination thereof; (b) amend, modify or change in any manner any term or condition of any Material Contract or give any consent, waiver or approval thereunder; (c) waive any default under or any breach of any term or condition of any Material Contract; (d) take any other action in connection with any Material Contract that would impair the value of the interest or rights of any Loan Party thereunder or that would impair the rights or interests of the Multicurrency Administrative Agent or any Lender, unless, with the foregoing subsections (a)-(d), (i) the applicable Loan Party or Subsidiary determines in the exercise of its good faith judgment that any such action is not in the best business interests of such Loan Party or Subsidiary and (b) any such action or failure to act by such Loan Party or Subsidiary would not materially adversely impact the interests of the Lenders; or (e) amend, modify or change in any manner adverse to the interests of the Loan Parties and their Subsidiaries or of the Lenders any term or condition of the Senior Note Documents, the Convertible Note Documents or any document or agreement governing Subordinated Debt permitted by Section 7.02, except for any refinancing, refunding, renewal or extension of Indebtedness permitted by Section 7.02(e). 7.17 DESIGNATION OF SENIOR DEBT. Designate any Indebtedness (other than the Indebtedness under the Loan Documents and other than the Senior Notes) of the Company or any of its Subsidiaries as "Designated Senior Debt" (or any similar term) under, and as defined in, the Convertible Note Documents. 7.18 IMPAIRMENT OF SECURITY INTERESTS. Take, or cause any Person to take, any action (including, without limitation, any action under Debtor Relief Laws) that would or could reasonably be expected to impair or invalidate the security interests and Liens granted on the Collateral pursuant to the Collateral Documents or the perfection or priority of such Liens. 7.19 FOREIGN OPERATIONS. So long as the Consolidated Leverage Ratio is greater than 4.00:1.00 (as reflected in the most recent Compliance Certificate delivered to the Multicurrency Administrative Agent), permit more than (a) 35% of the consolidated revenue of the Company and its Subsidiaries (as reflected in the most recent financial statements delivered pursuant to Section 6.01(a) or (b)) to be derived from Foreign Subsidiaries that are not Foreign Loan Parties; (b) 35% of the Consolidated EBITDA of the Company and its Subsidiaries (as reflected in the most recent Compliance Certificate delivered pursuant to Section 6.02(b)) to be derived from Foreign Subsidiaries that are not Foreign Loan Parties; or (c) 35% of the consolidated total assets of the Company and its Subsidiaries (as reflected in the most recent financial statements delivered pursuant to Section 6.01(a) or (b)) to be held by Foreign Subsidiaries that are not Foreign Loan Parties. Without the prior written consent of the Multicurrency Administrative Agent, after the Closing Date none of the Loan Parties shall form, create or otherwise acquire any Canadian unlimited liability company. 170 [Published CUSIP Number: ____] 7.20 RESTRICTIONS ON INSURANCE SUBSIDIARY, RECEIVABLES SUBSIDIARY AND FOREIGN SHELL SUBSIDIARIES. The Insurance Subsidiary, the Receivables Subsidiary and the Foreign Shell Subsidiaries shall have substantially no assets, liabilities or business operations, other than (a) with respect to the Insurance Subsidiary, such assets, liabilities and operations necessary (i) to provide insurance coverage to the Company and its Domestic Subsidiaries or (ii) to comply with all applicable Laws and (b) with respect to the Receivables Subsidiary, such assets, liabilities and operations (i) associated with a receivables financing to which the Receivables Subsidiary is a party (to the extent such receivables financing is permitted by the terms of Section 7.02) and (ii) necessary to comply with all applicable Laws. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of Default: (a) Non-Payment. Any Borrower or any other Loan Party fails to (i) pay when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) pay within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) pay within five days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or (b) Specific Covenants. (i) The Company fails to perform or observe any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10, 6.11, 6.19 or Article VII, (ii) any of the Guarantors fails to perform or observe any term, covenant or agreement contained in Article X or (iii) any of the Loan Parties fails to perform or observe any term, covenant or agreement contained in any Collateral Document to which it is a party; or (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or (d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Company or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith (i) that contains a materiality qualification shall be incorrect or misleading when made or deemed made or (ii) that does not contain 171 [Published CUSIP Number: ____] a materiality qualification shall be incorrect or misleading in any material respect when made or deemed made; or (e) Cross-Default. (i) Any Loan Party or any Subsidiary thereof (other than any Immaterial Subsidiary) (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise and after giving effect to any grace period) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or (f) Insolvency Proceedings, Etc. (i) Any Loan Party or any Subsidiary thereof (other than any Immaterial Subsidiary) institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; and (ii) with respect to the English Borrower or any other Borrower or Foreign Guarantor organized under the laws of the United Kingdom or England and Wales (an "English Obligor"), (A) any English Obligor is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness, (B) the value of the assets 172 [Published CUSIP Number: ____] of any member of an English Obligor is less than its liabilities (taking into account contingent and prospective liabilities), (C) a moratorium is declared in respect of any indebtedness of an English Obligor, (D) any corporate action, legal proceedings or other procedure or step is taken in relation to: (1) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise) of an English Obligor, (2) a composition, compromise, assignment or arrangement with any creditor of an English Obligor, (3) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of an English Obligor or any of its assets, (4) enforcement of any Security over any assets of any member of the Group, (5) or any analogous procedure or step is taken in any jurisdiction, or (E) any expropriation, attachment, sequestration, distress or execution affects any asset or assets of an English Obligor, or (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Subsidiary thereof (other than any Immaterial Subsidiary) becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, (ii) subject to (iii) below, any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy or (iii) a Dutch executory attachment (executoriaal beslag) affects any asset of a Loan Party having an aggregate value for all such affected assets of at least $10,000,000 (or any equivalent thereof in any other currency); or (h) Judgments. There is entered against any Loan Party or any Subsidiary thereof (other than any Immaterial Subsidiary) (i) one or more judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders, but excluding any portion thereof covered by insurance for which the insurance company has acknowledged coverage) exceeding the Threshold Amount, or (ii) any one or more non-monetary final judgments that are not covered by insurance (and for which the insurance company has acknowledged coverage) and that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by the prevailing party or any creditor upon such judgment or order, or (B) there is a period of 10 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any Loan Party or any Subsidiary thereof under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) any Loan Party, any Subsidiary thereof or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or 173 [Published CUSIP Number: ____] (j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect (other than as a result of the failure of any Administrative Agent, Collateral Agent, L/C Issuer or Lender to act); or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or (k) Change of Control. There occurs any Change of Control; or (l) Collateral Documents. Any Collateral Document after delivery thereof pursuant to Section 4.01 or 6.11 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject to Permitted Liens) on the Collateral purported to be covered thereby and with respect to which the applicable Collateral Agent has taken the necessary action to perfect such Lien; or any Loan Party or any other Person contests in any manner the validity, enforceability, perfection or priority of any such Lien on the Collateral; or (m) Subordination. (i) The subordination provisions of the documents evidencing or governing any subordinated Indebtedness, including the Convertible Note Documents (the "Subordinated Provisions") shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable subordinated Indebtedness; or (ii) the Company or any other Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of the Multicurrency Administrative Agents, the Lenders and the L/C Issuers or (C) that all payments of principal of or premium and interest on the applicable subordinated Indebtedness, or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Subordination Provisions; or (n) Exclusion from Medical Reimbursement Programs. Any Loan Party shall be temporarily or permanently excluded from any Medical Reimbursement Program, where such exclusion arises from fraud or other claims or allegations which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 8.02 REMEDIES UPON EVENT OF DEFAULT. (a) If any Event of Default occurs and is continuing, the Multicurrency Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions: (i) declare the commitment of each Lender with a Revolving Commitment or an Alternative Currency Commitment to make Loans and any 174 [Published CUSIP Number: ____] obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated; and (ii) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then applicable Outstanding Amount thereof). (b) If any Event of Default occurs and is continuing, the applicable Administrative Agent and/or applicable Collateral Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions (i) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; and (ii) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents; provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Multicurrency Administrative Agent or any Lender. 8.03 APPLICATION OF FUNDS. Notwithstanding any term herein or in any other Loan Document to the contrary, after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by the Multicurrency Administrative Agent in the following order: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to each Administrative Agent and amounts payable under Article III) payable to each Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers (including fees and time charges for 175 [Published CUSIP Number: ____] attorneys who may be employees of any Lender or any L/C Issuer) and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Third payable to them; Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuers, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to the Multicurrency Administrative Agent for the account of the L/C Issuers, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Company or applicable Foreign Borrower or as otherwise required by Law. Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. Notwithstanding the foregoing terms of this Section 8.03, none of the Foreign Loan Parties shall be required to repay or prepay, or to guarantee, nor shall any amount paid by the Foreign Loan Parties be applied to, the Multicurrency Obligations. ARTICLE IX ADMINISTRATIVE AGENT 9.01 APPOINTMENT AND AUTHORITY. (a) Each of the Lenders and the L/C Issuers hereby irrevocably appoints (i) National City Bank or any of its affiliates to act on its behalf as the Multicurrency Administrative Agent and the Canadian Administrative Agent and (ii) Banc of America Securities Asia Limited, acting through its Australian branch, or any of its affiliates to act on its behalf as the Australian Administrative Agent hereunder and under the other Loan Documents and authorizes each Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to such Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental 176 [Published CUSIP Number: ____] thereto. The provisions of this Article are solely for the benefit of each Administrative Agent, the Lenders and the L/C Issuers, and neither any Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. (b) The applicable Administrative Agent shall also act as the "collateral agent" under the applicable Loan Documents (and, in the case of the English Collateral Documents, as "security trustee"), and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), potential Hedge Bank, potential Cash Management Bank) and the L/C Issuers hereby irrevocably appoints and authorizes such Administrative Agent to act as the agent or security trustee, as the case may be, of such Lender, Hedge Bank, Cash Management Bank and L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the applicable Administrative Agent, as "collateral agent" or "security trustee" and any co-agents, sub-agents and attorneys-in-fact appointed by such Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of such Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the "collateral agent" or "security trustee" under the Loan Documents) as if set forth in full herein with respect thereto. 9.02 RIGHTS AS A LENDER. Each Person serving as an Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as an Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not an Administrative Agent hereunder and without any duty to account therefor to the Lenders. 9.03 EXCULPATORY PROVISIONS. An Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, each Administrative Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated 177 [Published CUSIP Number: ____] hereby or by the other Loan Documents that the applicable Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the applicable Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and (c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by the Person serving as an Administrative Agent or any of its Affiliates in any capacity. An Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct. An Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to such Administrative Agent by the Company, a Lender or an L/C Issuer. An Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the applicable Administrative Agent. 9.04 RELIANCE BY ADMINISTRATIVE AGENT. Each Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the applicable 178 [Published CUSIP Number: ____] Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless such Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Each Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. 9.05 DELEGATION OF DUTIES. Each Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by an Administrative Agent. Each Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Administrative Agent. 9.06 RESIGNATION OF ADMINISTRATIVE AGENT. Any Administrative Agent may at any time give notice of its resignation to the Lenders, each L/C Issuer and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, in consultation with the Company, on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if such Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by such Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through such Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor's appointment as an Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to a successor Administrative Agent shall be the 179 [Published CUSIP Number: ____] same as those payable to its predecessor unless otherwise agreed in writing between the Company and such successor. After the retiring Administrative Agent's resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as an Administrative Agent. Any resignation by National City Bank as Multicurrency Administrative Agent pursuant to this Section shall also constitute its resignation as Canadian Administrative Agent, Principal L/C Issuer and Swing Line Lender. Upon the acceptance of a successor's appointment as Multicurrency Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Canadian Administrative Agent, Principal L/C Issuer and Swing Line Lender, (ii) the retiring Canadian Administrative Agent, Principal L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor Principal L/C Issuer shall issue letters of credit in substitution for the Letters of Credit issued by the retiring Principal L/C Issuer, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Principal L/C Issuer to effectively assume the obligations of the retiring Principal L/C Issuer with respect to such Letters of Credit. 9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon an Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon an Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder. 9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers or other agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as an Administrative Agent, a Lender or an L/C Issuer hereunder. 9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Multicurrency Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the 180 [Published CUSIP Number: ____] Multicurrency Administrative Agent shall have made any demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and each Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and each Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and each Administrative Agent under Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Multicurrency Administrative Agent and, if the Multicurrency Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Multicurrency Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Multicurrency Administrative Agent and its agents and counsel, and any other amounts due the Multicurrency Administrative Agent under Sections 2.09 and 11.04. Nothing contained herein shall be deemed to authorize the Multicurrency Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Multicurrency Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer or in any such proceeding. 9.10 COLLATERAL AND GUARANTY MATTERS. The Lenders and the L/C Issuers irrevocably authorize the applicable Administrative Agent or Collateral Agent, at its option and in its discretion, (a) to release any Lien on any property granted to or held by such Administrative Agent or Collateral Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder (including, without limitation, any Disposition pursuant to Section 7.05(h)) or under any other Loan Document, or (iii) if approved, authorized or ratified in writing in accordance with Section 11.01; 181 [Published CUSIP Number: ____] (b) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder; (c) to subordinate any Lien on any property granted to or held by the applicable Administrative Agent or Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(g); and (d) to enter into a Lien release and agreement with respect to the Customer Leases sold pursuant to Section 7.05(h) acknowledging the right of the purchaser thereof to purchase such Customer Leases free and clear of any the Liens granted pursuant to the Collateral Documents and that the Collateral Agent shall have no interest in such Customer Leases upon the consummation of such sale. Upon request by the applicable Administrative Agent or Collateral Agent at any time, the Required Lenders (or such other group of Lenders as required by this Agreement) will confirm in writing the applicable Administrative Agent's or Collateral Agent's authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10. In each case as specified in this Section 9.10, the applicable Administrative Agent or Collateral Agent will, at the Company's expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10. 9.11 CANADIAN COLLATERAL AGENT. To the extent necessary, each Canadian Revolving Lender for itself and for all present and future Affiliates of such Canadian Revolving Lender that are parties to any Secured Hedge Agreement or Secured Cash Management Agreement with any Canadian Loan Party (collectively, the "Canadian Secured Parties" and individually, a "Canadian Secured Party") hereby irrevocably appoints and authorizes the Canadian Collateral Agent (and any successor acting as Canadian Collateral Agent) to act as the person holding the power of attorney (in such capacity, the "Fonde de pouvoir") of each Canadian Secured Party, as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into, take and hold on their behalf, and for their benefit, the hypothecs granted by any Canadian Loan Party in favour of the Fonde de pouvoir under the Civil Code of Quebec pursuant to any Deed of Hypothec, and to exercise such powers and duties which are conferred upon the Fonde de pouvoir under the Deeds of Hypothec. Moreover, without prejudice to such appointment and authorization to act as the person holding the power of attorney as aforesaid, each Canadian Secured Party hereby irrevocably appoints and authorizes the Canadian Collateral Agent (and any successor acting as Canadian Collateral Agent) to act as agent or mandatary and custodian for and on behalf of the Canadian Secured Parties to hold and to be the sole registered holder of any bond which may be issued under the Deeds of Hypothec (in such capacity, the "Custodian"), the whole notwithstanding Section 32 of An Act Respecting the Special Powers of Legal Persons (Quebec) or any other applicable Law. In this respect, (a) records shall be kept indicating the names and addresses of, and the pro rata 182 [Published CUSIP Number: ____] portion of the Obligations and Indebtedness secured by any Quebec Bond Pledge granted in respect of any such bond and owing to each Canadian Secured Party, and (b) each Canadian Secured Party will be entitled to the benefits of any property hypothecated under any Deeds of Hypothec and will participate in the proceeds of realization of any such hypothecated property, the whole in accordance with the terms hereof. Each of the Fonde de pouvoir and the Custodian shall (i) exercise, in accordance with the terms hereof and applicable Laws, all rights and remedies given to the Fonde de pouvoir and the Custodian, as applicable, with respect to the property hypothecated under any Deed of Hypothec, any bond issued under any Deed of Hypothec and any Quebec Bond Pledge, (ii) benefit from and be subject to all provisions hereof with respect to the Canadian Collateral Agent, mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Canadian Secured Parties, and (iii) be entitled to delegate from time to time any of its powers or duties under any Deed of Hypothec, any bond issued under any Deed of Hypothec and any Quebec Bond Pledge, and on such terms and conditions as it may determine from time to time. Any person who becomes a Canadian Secured Party shall be deemed to have consented to and confirmed: (A) the Fonde de pouvoir as the person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a Canadian Secured Party, all actions taken by the Fonde de pouvoir as the person holding the power of attorney as aforesaid and to have ratified, as of the date it becomes a Canadian Secured Party, all actions taken by the Fonde de pouvoir in such capacity; and (B) the Custodian as the agent or mandatary and custodian as aforesaid and to have ratified, as of the date it becomes a Canadian Secured Party, all actions taken by the Custodian in such capacity. Furthermore, to the extent required, the Canadian Secured Parties hereby ratify and confirm the execution by the Fonde de pouvoir and the Custodian of any Deed of Hypothec, Quebec Bond Pledge or any other Loan Document prior to the date of this Agreement. ARTICLE X GUARANTY 10.01 THE GUARANTY. (a) Each of the Domestic Guarantors hereby jointly and severally guarantees to each Secured Party, as primary obligor and not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. The Domestic Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Domestic Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether 183 [Published CUSIP Number: ____] at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal. (b) Each of the Multicurrency Foreign Guarantors hereby severally guarantees to each Revolving Lender, each Administrative Agent, each Collateral Agent, each L/C Issuer, each applicable Hedge Bank and each applicable Cash Management Bank, as primary obligor and not as surety, the prompt payment of the Foreign Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. Each of the Multicurrency Foreign Guarantors hereby further agrees that if any of such obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Multicurrency Foreign Guarantors will, severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of such obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal. Notwithstanding the foregoing, a Multicurrency Foreign Guarantor shall not be required to guarantee any Foreign Obligation if, in the good faith judgment of the Company, doing so would give rise to an adverse tax consequence under Section 965 of the Code. (c) Each of the Canadian Facility Guarantors hereby severally guarantees to each Revolving Lender, each Administrative Agent, each Collateral Agent, each L/C Issuer, each applicable Hedge Bank and each applicable Cash Management Bank, as primary obligor and not as surety, the prompt payment of the Canadian Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. Each of the Canadian Facility Guarantors hereby further agrees that if any of such obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Canadian Facility Guarantors will, severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of such obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal. Notwithstanding the foregoing, a Canadian Facility Guarantor shall not be required to guarantee any Canadian Obligation if, in the good faith judgment of the Company, doing so would give rise to an adverse tax consequence under Section 965 of the Code. (d) Each of the Australian Facility Guarantors hereby severally guarantees to each Revolving Lender, each Administrative Agent, each Collateral Agent, each L/C Issuer, each applicable Hedge Bank and each applicable Cash Management Bank, as primary obligor and not as surety, the prompt payment of the Australian Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly in accordance with the terms thereof. Each of the Australian Facility Guarantors hereby further agrees that if any of such obligations are not 184 [Published CUSIP Number: ____] paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Australian Facility Guarantors will, severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of such obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) in accordance with the terms of such extension or renewal. Notwithstanding the foregoing, a Australian Facility Guarantor shall not be required to guarantee any Foreign Obligation if, in the good faith judgment of the Company, doing so would give rise to an adverse tax consequence under Section 965 of the Code. (e) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, Swap Contracts or Cash Management Agreements, the obligations of each Guarantor (in its capacity as such) under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable Law. 10.02 OBLIGATIONS UNCONDITIONAL. (a) The obligations of the Domestic Guarantors under Section 10.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, or any other agreement or instrument referred to therein, or any substitution, compromise, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 10.02 that the obligations of the Domestic Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Domestic Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrowers or any other Guarantor for amounts paid under this Article X until such time as the Obligations have been irrevocably paid in full and the commitments relating thereto have expired or terminated. (b) The obligations of the Foreign Guarantors under Section 10.01 are several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, or any other agreement or instrument referred to therein, or any substitution, compromise, release, impairment or exchange of any other guarantee of or security for any of the Foreign Obligations, and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 10.02 that the obligations of the Foreign Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each of the Foreign Guarantors agrees that such Foreign Guarantor shall have no right of subrogation (or shall not exercise any right of subrogation to which it may be entitled), indemnity, reimbursement or contribution (or shall not exercise any right of indemnity or contribution 185 [Published CUSIP Number: ____] to which it may be entitled) against the Foreign Borrowers or any other Foreign Guarantor for amounts paid under this Article X until such time as the Foreign Obligations have been irrevocably paid in full and the commitments relating thereto have expired or terminated. No Guarantor (i) will claim, rank, prove or vote as a creditor of any Loan Party or its estate in competition with any Secured Party (or any trustee or agent on its behalf) or (ii) receive, claim or have the benefit of any payment, distribution or security from or on account of any Loan Party, or exercise any right of set-off against any Loan Party. (c) Without limiting the generality of the foregoing subsections (a) and (b), it is agreed that, to the fullest extent permitted by Law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above: (i) at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived; (ii) any of the acts mentioned in any of the provisions of any of the Loan Documents, any Swap contract between any Loan Party and any Lender, or any Affiliate of a Lender or any other agreement or instrument referred to therein shall be done or omitted; (iii) the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents, any Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender or any other agreement or instrument referred to therein shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with; (iv) any Lien granted to, or in favor of, any Administrative Agent or any holder of the Obligations as security for any of the Obligations shall fail to attach or be perfected; or (v) any of the Obligations shall be determined to be void or voidable (including for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including any creditor of any Guarantor). (d) With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest, notice of acceptance of the guaranty given hereby and of extensions of credit that may constitute obligations guaranteed hereby, notices of amendments, waivers, consents and supplements to the Loan Documents, any Swap Contract between any Loan Party and any Lender, or any Affiliate of a Lender, or the compromise, release or exchange of collateral or security, and all other notices whatsoever, and any requirement that any Administrative Agent or any holder of the Obligations exhaust any right, power or remedy or proceed against any Person under any of 186 [Published CUSIP Number: ____] the Loan Documents or any other documents relating to the Obligations or any other agreement or instrument referred to therein, or against any other Person under any other guarantee of, or security for, any of the Obligations. 10.03 REINSTATEMENT. Neither the Guarantors' obligations hereunder nor any remedy for the enforcement thereof shall be impaired, modified, changed or released in any manner whatsoever by an impairment, modification, change, release or limitation of the liability of the Borrowers, by reason of any Borrower's bankruptcy or insolvency or by reason of the invalidity or unenforceability of all or any portion of the Obligations. In addition: (a) The obligations of each Domestic Guarantor under this Article X shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any Debtor Relief Law or otherwise, and each Domestic Guarantor agrees that it will indemnify each Administrative Agent and each holder of the Obligations on demand for all reasonable costs and expenses (including reasonable attorneys' fees and disbursements) incurred by any Administrative Agent or such holder of the Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law. (b) The obligations of each Foreign Guarantor under this Article X shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Foreign Obligations is rescinded or must be otherwise restored by any holder of any of the Foreign Obligations, whether as a result of any Debtor Relief Law or otherwise, and each of the Foreign Guarantors agrees that it will indemnify each Administrative Agent and each holder of the Foreign Obligations on demand for all reasonable costs and expenses (including reasonable attorneys' fees and disbursements) incurred by any Administrative Agent or such holder of the Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law. 10.04 CERTAIN WAIVERS. Each Guarantor acknowledges and agrees that (a) the guaranty given hereby may be enforced without the necessity of resorting to or otherwise exhausting remedies in respect of any other security or collateral interests, and without the necessity at any time of having to take recourse against the Borrowers hereunder or against any collateral securing the Obligations or otherwise, (b) it will not assert any right to require the action first be taken against the Borrowers or any other Person (including any co-guarantor) or pursuit of any other remedy or enforcement any other right, (c) it will not assert any defenses (i) with respect to any change in the corporate existence or structure of any Borrower, (ii) with respect to any Law of any jurisdiction or any 187 [Published CUSIP Number: ____] event affecting any term of the obligations of each Guarantor under this Article X or (iii) as a result or related to any other circumstance that might constitute a defense of any Borrower or any Guarantor, (d) it will not assert any claims or set-off rights that such Guarantor may have and (e) nothing contained herein shall prevent or limit action being taken against the Borrowers hereunder, under the other Loan Documents or the other documents and agreements relating to the Obligations or from foreclosing on any security or collateral interests relating hereto or thereto, or from exercising any other rights or remedies available in respect thereof, if neither the Borrowers nor the Guarantors shall timely perform their obligations, and the exercise of any such rights and completion of any such foreclosure proceedings shall not constitute a discharge of the Guarantors' obligations hereunder unless as a result thereof, the Obligations shall have been paid in full and the commitments relating thereto shall have expired or terminated, it being the purpose and intent that the Guarantors' obligations hereunder be absolute, irrevocable, independent and unconditional under all circumstances. Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 10.02 and through the exercise of rights of contribution pursuant to Section 10.06. 10.05 REMEDIES. (a) The Domestic Guarantors agree that, to the fullest extent permitted by Law, as between the Domestic Guarantors, on the one hand, and holders of the Obligations, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 8.02 (and shall be deemed to have become automatically due and payable in the circumstances specified in Section 8.02) for purposes of Section 10.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Domestic Guarantors for purposes of Section 10.01. (b) Each of the Foreign Guarantors agrees that, to the fullest extent permitted by Law, as between the Foreign Guarantors, on the one hand, and the holders of the Foreign Obligations, on the other hand, the Foreign Obligations may be declared to be forthwith due and payable as provided in Section 8.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 8.02) for purposes of Section 10.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Foreign Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Foreign Obligations being deemed to have become automatically due and payable), the Foreign Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Foreign Guarantors for purposes of Section 10.01. 188 [Published CUSIP Number: ____] 10.06 RIGHTS OF CONTRIBUTION. (a) The Domestic Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each Domestic Guarantor shall have a right of contribution from each other Domestic Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated, and none of the Domestic Guarantors shall exercise any such contribution rights until the Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated. (b) The Foreign Guarantors hereby agree as among themselves that, in connection with payments made hereunder, each of the Foreign Guarantors shall have a right of contribution from each other Guarantor in accordance with applicable Law. Such contribution rights shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated, and none of the Foreign Guarantors shall exercise any such contribution rights until the Obligations have been irrevocably paid in full and the commitments relating thereto shall have expired or been terminated. 10.07 GUARANTY OF PAYMENT; CONTINUING GUARANTEE. (a) The guarantee given by the Domestic Guarantors in this Article X is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising. (b) The guarantee given by the Foreign Guarantors in this Article X is a guaranty of payment and not (i) a guaranty of collection or (ii) a surety (borgtocht), is a continuing guarantee, and shall apply to all Foreign Obligations whenever arising. 10.08 FOREIGN GUARANTY MATTERS. (a) The guarantee provided by the English Borrower or any other Foreign Guarantor organized under the laws of the United Kingdom, or England and Wales does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of Section 151 of the Companies Act 1985 of the United Kingdom. (b) Notwithstanding any provision of this Article X, the guarantee, indemnity and other obligations (as well as any security created in relation thereto) of any Guarantor incorporated in Denmark (a "Danish Guarantor") and such Danish Guarantor's Subsidiaries expressed to be assumed in this Article X or any other Loan Document (i) shall be deemed not to be assumed (and any security created in relation thereto shall be limited) to the extent that the same would constitute unlawful financial assistance within the meaning of Sections 115 and 115a of the 189 [Published CUSIP Number: ____] Danish Public Limited Companies Act or Sections 49 and 50 of the Danish Private Limited Companies Act; and (ii) shall further be limited to an amount equivalent to the higher of: (A) the Equity of such Danish Guarantor at the time(s) the Danish Guarantor is requested to make a payment under Article X; and (B) the Equity of such Danish Guarantor at the date of this Agreement, provided that these limitations in subclause (ii) shall only apply to obligations and liabilities of such Danish Guarantor under Article X which exceed the sum of (A) the advances received by such Danish Guarantor (and its Subsidiaries) in its capacity as Borrower under this Agreement or in its capacity as intra-group borrower and (B) interest and other costs and fees which are to be borne by such Danish Guarantor in its capacity as Borrower (and its Subsidiaries) under this Agreement or in its (and its Subsidiaries) capacity as intra-group borrower. For the purposes of this Section 10.08(b) "Equity" means the equity (in Danish: egenkapital) of such Danish Guarantor calculated in accordance with applicable generally accepted accounting principles, however, adjusted if and to the extent any book value is not equal to the market value. (c) If and to the extent that obligations under the Loan Documents of a Foreign Guarantor incorporated in Switzerland (a "Swiss Guarantor") are for the benefit of its Affiliates (other than its Subsidiaries) and that complying with such obligations would constitute a repayment of capital (Einlageruckgewahr) or the payment of a (constructive) dividend (Gewinnausschuttung), the following shall apply: (A) The aggregate obligations of each Swiss Guarantor under the Loan Documents, including, without limitation, under Section 3.01(i)(ii) (Tax indemnity), Section 11.04 (Other indemnities) and this Section 10.08(c)(A) shall be limited to the maximum amount of the Swiss Obligor's profits and reserves available for distribution, in each case in accordance with, without limitation, articles 671(1) to (3) and 675(2) of the Swiss Code of Obligations at the time a Swiss Guarantor makes a payment under the Loan Documents (provided that this is a requirement under applicable law at that time) and less Swiss Withholding Tax, if any, and to the extent required by applicable law in force at the relevant time, currently at the rate of 35% (the "Swiss Available Amount"); and (B) Immediately after having been requested to make a payment under the Loan Documents, such Swiss Guarantor shall: (I) provide the Collateral Agent, within 30 Business Days, with (a) an interim balance sheet, (b) the determination by 190 [Published CUSIP Number: ____] the statutory auditors of the Swiss Available Amount based on such interim audited balance sheet and (c) a confirmation from the statutory auditors of the Swiss Guarantor that the Swiss Available Amount complies with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves; and, immediately thereafter, (II) pay the Swiss Available Amount or the amount requested by the Collateral Agent, whichever is lower to the Multicurrency Administrative Agent. (d) The guarantee provided by the Dutch Borrower or any other Foreign Guarantor incorporated under Dutch law does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of article 2:207(c) or article 2:98(c) of the Dutch Civil Code. ARTICLE XI MISCELLANEOUS 11.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as the case may be, and acknowledged by the Multicurrency Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall: (a) waive any condition set forth in Section 4.02, or, in the case of the initial Credit Extension, Section 4.01, without the written consent of each Lender; (b) without limiting the generality of clause (a) above, waive any condition set forth in Section 4.02 as to any Credit Extension under a particular Facility without the written consent of the Required Revolving Lenders, the Required Alternative Currency Lenders or the Required Term B Lenders, as the case may be; (c) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender; (d) postpone any date fixed by this Agreement or any other Loan Document for (i) any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under such other Loan 191 [Published CUSIP Number: ____] Document without the written consent of each Lender whose payment is being postponed or (ii) any scheduled reduction of any Facility hereunder or under any other Loan Document without the written consent of each Appropriate Lender; (e) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (vii) of the second proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document, or change the manner of computation of any financial ratio (including any change in any applicable defined term) used in determining and for the purpose of determining the Applicable Rate that would result in a reduction of any interest rate on any Loan or any fee payable hereunder without the written consent of each Lender entitled to such amount; provided, however, that only the consent of the Required Lenders shall be necessary (i) to amend the definition of "Default Rate" or to waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein so long as the effect of such amendment would not reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder); (f) change (i) Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender or (ii) the order of application of any reduction in the Commitments or any prepayment of Loans among the Facilities from the application thereof set forth in the applicable provisions of Section 2.05(b), 2.06(c), or 2.12(f) respectively, in any manner that materially and adversely affects the Lenders under a Facility without the written consent of (i) if such Facility is the Term B Facility, the Required Term B Lenders, (ii) if such Facility is the Revolving Facility, the Required Revolving Lenders and (iii) if such Facility is an Alternative Currency Facility, the Required Alternative Currency Lenders under such Alternative Currency Facility; (g) change (i) any provision of this Section 11.01 or the definition of "Required Lenders" or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder (other than the definitions specified in clause (ii) of this Section 11.01(g)), without the written consent of each Lender or (ii) the definition of "Required Revolving Lenders," "Required Australian Revolving Lenders," "Required Canadian Revolving Lenders," "Required Alternative Currency Lenders" or "Required Term B Lenders" without the written consent of each Lender under the applicable Facility; (h) release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender; (i) release all or substantially all of the value of the Guaranty, without the written consent of each Lender; 192 [Published CUSIP Number: ____] (j) impose any greater restriction on the ability of any Lender under a Facility to assign any of its rights or obligations hereunder without the written consent of (i) if such Facility is the Term B Facility, the Required Term B Lenders, (ii) if such Facility is the Multicurrency Facility, the Required Multicurrency Revolving Lenders, (iii) if such Facility is the Australian Facility, the Required Australian Revolving Lenders, (iv) if such Facility is the Canadian Facility, the Required Canadian Revolving Lenders and (v) if such Facility is any Alternative Currency Facility, the Required Alternative Currency Lenders under such Alternative Currency Facility; or (k) change or waive any provision of Section 7.15(f) or any other term of any Loan Document if the effect of such change or waiver is to permit the redemption or cash settlement of the Convertible Notes other than in accordance with the terms of Section 7.15(e) without the consent of the Required Revolving Lenders; and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Multicurrency Administrative Agent or the Multicurrency Collateral Agent, as applicable, in addition to the Lenders required above, affect the rights or duties of the Multicurrency Administrative Agent or the Multicurrency Collateral Agent under this Agreement or any other Loan Document; (iv) no amendment, waiver or consent shall, unless in writing and signed by the Australian Administrative Agent or the Australian Collateral Agent, as applicable, in addition to the Lenders required above, affect the rights or duties of the Australian Administrative Agent or the Australian Collateral Agent, as applicable, under this Agreement or any other Loan Document; (v) no amendment, waiver or consent shall, unless in writing and signed by the Canadian Administrative Agent or the Canadian Collateral Agent, as applicable, in addition to the Lenders required above, affect the rights or duties of the Canadian Administrative Agent or the Canadian Collateral Agent, as applicable, under this Agreement or any other Loan Document; (vi) Section 11.06(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; and (vii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein or in any other Loan Document, (A) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender and (B) without the consent of the Lenders, Required Lenders or Loan Parties (other than the Lenders and Loan Parties that are party to such Alternative Currency Addendum), an Alternative Currency Addendum may modify any applicable term of this Agreement solely with respect to the Alternative Currency Facility provided pursuant to such Alternative Currency Addendum and in the event of any inconsistency between such Alternative Currency Addendum and this Agreement or any other Loan Document with respect to the terms of the Alternative Currency Facility provided pursuant to such Alternative Currency Addendum, such Alternative Currency Addendum shall govern. 193 [Published CUSIP Number: ____] 11.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS. (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) if to a Borrower, an Administrative Agent, an L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 11.02; and (ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire. Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b). (b) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Multicurrency Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Multicurrency Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Each Administrative Agent or the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless an Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed 194 [Published CUSIP Number: ____] received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor. (c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall any Administrative Agent or any of their Related Parties (collectively, the "Agent Parties") have any liability to any Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Borrower's or any Administrative Agent's transmission of Loan Party Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Borrower, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages). (d) Change of Address, Etc. Each of the Borrowers, each Administrative Agent, each L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Company, the Multicurrency Administrative Agent, the L/C Issuers and the Swing Line Lender. In addition, each Lender agrees to notify the Multicurrency Administrative Agent from time to time to ensure that the Multicurrency Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the "Private Side Information" or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender's compliance procedures and applicable Law, including Unites States federal and state Securities Law, to make reference to the Borrower Materials that are not made available through the "Public Side Information" portion of the Platform and that may contain material non-public information with respect to the Company or its securities for purposes of Unites Sates federal or state Securities Law. 195 [Published CUSIP Number: ____] (e) Reliance by Administrative Agents, L/C Issuers and Lenders. Each Administrative Agent, each L/C Issuer and each Lender shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Company shall indemnify each Administrative Agents, the L/C Issuers, the Lenders and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Borrower, except, with respect to any such Person, for any loss, cost, expense or liability resulting from such Person's gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment. All telephonic notices to and other telephonic communications with the Administrative Agents may be recorded by such Administrative Agent, and each of the parties hereto hereby consents to such recording. 11.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, any L/C Issuer or any Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 11.04 EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) Costs and Expenses. The Company shall pay (i) all reasonable out-of-pocket expenses incurred by any Administrative Agent, the Arrangers and their respective Affiliates (including the reasonable fees, charges and disbursements of counsel for each such Administrative Agent and for the Arrangers), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the applicable L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by any Administrative Agent, any Lender or any L/C Issuer (including the fees, charges and disbursements of any counsel for any Administrative Agent, any Lender or any L/C Issuer), and shall pay all fees and time charges for attorneys who may be employees of any Administrative Agent, any Lender or any L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the 196 [Published CUSIP Number: ____] other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. (b) Indemnification by the Borrower. The Company shall indemnify each Administrative Agent (and any sub-agent thereof), each Arranger, each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of each Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by a L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any other Loan Party or any of the Company's or such Loan Party's directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder or under any other Loan Document, if the Company or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. (c) Reimbursement by Lenders. To the extent that the Company for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to any Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to such Administrative Agent (or any such sub-agent), such L/C Issuer or such Related 197 [Published CUSIP Number: ____] Party, as the case may be, such Lender's Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any such Administrative Agent (or any such sub-agent) or such L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for any such Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d). (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no Borrower shall assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction. (e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor. (f) Survival. The agreements in this Section 11.04 shall survive the resignation of the Multicurrency Administrative Agent, the Multicurrency Collateral Agent, the Australian Administrative Agent, the Australian Collateral Agent, the Canadian Administrative Agent, the Canadian Collateral Agent, and any L/C Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations. 11.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf of any Borrower is made to any Administrative Agent, any L/C Issuer or any Lender, or any Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such 198 [Published CUSIP Number: ____] setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to such Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by such Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement. 11.06 SUCCESSORS AND ASSIGNS. (a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither any Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 11.06(b), (ii) by way of participation in accordance with the provisions of Section 11.06(d), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(f), or (iv) to an SPC in accordance with the provisions of Section 11.06(h) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Multicurrency Administrative Agent, the Multicurrency Collateral Agent, the Australian Administrative Agent, the Australian Collateral Agent, the Canadian Administrative Agent, the Canadian Collateral Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 11.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Lender's Commitment under any Facility and the Loans at the time owing to it under such Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and 199 [Published CUSIP Number: ____] (B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Multicurrency Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Facility, or $1,000,000, in the case of any assignment in respect of either Term B Facility, unless each of the Multicurrency Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met; (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not (A) apply to the Swing Line Lender's rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis; (iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition: (A) the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any Revolving Commitment or Revolving Loan unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; (B) the consent of the Multicurrency Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) any Term B Commitment or Multicurrency Credit Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender 200 [Published CUSIP Number: ____] or (ii) any Term B Loan or Revolving Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and (C) the consent of the Australian Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) the Australian Revolving Commitments if such assignment is to a Person that is not a Lender with an Australian Revolving Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender; (D) the consent of the Canadian Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) the Canadian Revolving Commitments if such assignment is to a Person that is not a Lender with a Canadian Revolving Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender; (E) the consent of the Principal L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and (F) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Facility. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Multicurrency Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount $3,500; provided, however, that the Multicurrency Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it shall not be a Lender, shall deliver to the Multicurrency Administrative Agent an Administrative Questionnaire. (v) No Assignment to Company. No such assignment shall be made to the Company or any of the Company's Affiliates or Subsidiaries. (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person. Subject to acceptance and recording thereof by the Multicurrency Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Credit Agreement, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Credit Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be 201 [Published CUSIP Number: ____] released from its obligations under this Credit Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Credit Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(d). (c) Register. The Multicurrency Administrative Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Multicurrency Administrative Agent's Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agents, sell participations to any Person (other than a natural person or the Company or any of the Company's Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender's participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agents, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.06(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. 202 [Published CUSIP Number: ____] (e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as though it were a Lender. (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (g) Electronic Execution of Assignments. The words "execution," "signed," "signature," and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. (h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Multicurrency Administrative Agent and the Company (an "SPC") the option to provide all or any part of the Term B Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund the Term B Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of the Term B Loan, the Granting Lender shall be obligated to make such Term B Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the Multicurrency Administrative Agent as is required under Section 2.12(b)(ii). Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrowers under this Agreement (including its obligations under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of the Term B Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Term B Loan 203 [Published CUSIP Number: ____] were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Company and the Multicurrency Administrative Agent and with the payment of a processing fee in the amount of $2,500, assign all or any portion of its right to receive payment with respect to any Term B Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of the Term B Loan to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC. (i) Resignation as Principal L/C Issuer, Swing Line Lender or Canadian Administrative Agent and Collateral Agent after Assignment. Notwithstanding anything to the contrary contained herein, if at any time National City Bank assigns all of its Revolving Commitments and Revolving Loans pursuant to Section 11.06(b), National City Bank may, upon 30 days' notice to the Company and the Lenders, resign as Principal L/C Issuer, Swing Line Lender, Canadian Administrative Agent and/or Canadian Collateral Agent. In the event of any such resignation as Principal L/C Issuer, Swing Line Lender, Canadian Administrative Agent or Canadian Collateral Agent, the Company shall be entitled to appoint from among the Lenders a successor Principal L/C Issuer, Swing Line Lender, Canadian Administrative Agent or Canadian Collateral Agent hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of National City Bank as Principal L/C Issuer, Swing Line Lender, Canadian Administrative Agent and Canadian Collateral Agent, as the case may be. If National City Bank resigns as Principal L/C Issuer, it shall retain all the rights, powers, privileges and duties of the Principal L/C Issuer hereunder with respect to all Letters of Credit issued by it that are outstanding as of the effective date of its resignation as Principal L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If National City Bank resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor Principal L/C Issuer, Swing Line Lender, Canadian Administrative Agent and/or Canadian Collateral Agent, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Principal L/C Issuer, Swing Line Lender, Canadian Administrative Agent or Canadian Collateral Agent, as the case may be, and (b) the successor Principal L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements 204 [Published CUSIP Number: ____] satisfactory to National City Bank to effectively assume the obligations of National City Bank with respect to such Letters of Credit. (j) Swiss Law Requirements. Notwithstanding anything to the contrary contained in the clauses above: (i) Consultation with the Swiss Borrower is required prior to an assignment or transfer by a Lender. (ii) The consent of the Swiss Borrower is not required for any assignment or transfer if such assignment or transfer is to a prospective new lender which is a Qualifying Swiss Bank or a Permitted Non-Qualifying Institution. Save for an assignment or transfer to a Permitted Non-Qualifying Institution, the Swiss Borrower may, however, acting reasonably, request from a prospective new lender a copy of a ruling of the Swiss Federal Tax Authorities (at the request of the Swiss Borrower, certified as a true copy by two officers of the prospective new lender) confirming that such new lender is a Qualifying Swiss Bank and as a condition precedent to such prospective new lender becoming a Lender) if the Swiss Borrower believes (acting reasonably) that the prospective new lender is not a Qualifying Swiss Bank. (iii) A prospective new lender that is not (1) a Qualifying Swiss Bank or (2) a Permitted Non-Qualifying Institution, may only become a Lender, and a Lender may only assign or transfer any of its rights and benefits hereunder to such a person (such person being a "Proposed Permitted Non-Qualifying Institution") if: (A) the Multicurrency Administrative Agent has consented thereto (and the Multicurrency Administrative Agent shall be fully protected and shall have no liability to any person in the exercise of its discretion whether or not to grant consent); (B) the Swiss Borrower has consented thereto (such consent not to be unreasonably withheld or delayed unless the Swiss Borrower believes that, after giving effect to the proposed accession of such Proposed Permitted Non-Qualifying Institution as a Lender, it will not be in compliance with the Non-Bank Rules); and (C) the Proposed Permitted Non-Qualifying Institution has, as a condition precedent to its becoming a Lender (unless the Swiss Borrower in its sole discretion waives the requirement of this paragraph (c)), delivered to the Multicurrency Administrative Agent (for and on behalf of itself and the other Lenders) and the Swiss Borrower: (I) a copy of a ruling of the Swiss Federal Tax Authorities (at the cost of such Proposed Permitted Non- 205 [Published CUSIP Number: ____] Qualifying Institution) (at the request of the Swiss Borrower, certified as a true copy by two officers of the Proposed Permitted Non-Qualifying Institution), following full disclosure by the Swiss Borrower (at the request of the Proposed Permitted Non-Qualifying Institution) to the Swiss Federal Tax Authorities of all relevant information relating to such Proposed Permitted Non-Qualifying Institution's proposed participation in the Credit Agreement as communicated to the Swiss Borrower by such Proposed Permitted Non-Qualifying Institution, that such Proposed Permitted Non-Qualifying Institution's participation in the Agreement will be treated as having been provided by one creditor only for the purposes of the Non-Bank Rules; and (II) a certificate from it that it will take no action that would result in its participation being treated in any different manner to that referred to in (i) above by the Swiss Federal Tax Authorities. (iv) On each date that any Permitted Non-Qualifying Institution is due to receive a payment from the Multicurrency Administrative Agent, it shall be deemed to confirm that the information provided to the Swiss Borrower by such Permitted Non-Qualifying Institution (or on its behalf) pursuant to Section 11.06(j)(iii)(C) above, is true, complete and accurate. (v) The consent of the Swiss Borrower (where required under this Section 11.06 (Successor and Assigns)) to an assignment or transfer must not be withheld solely because the assignment or transfer may result in an increase to the usual cost related to the Loan Documents. (vi) If (A) a Lender assigns or transfers any of its rights or obligations under the Loan Documents or changes its office from when it performs its obligations under the Loan Documents and (B) as a result of circumstances existing at the date the assignment, transfer or change occurs, the Swiss Borrower would be obliged to make a payment to the new lender or Lender acting through its new facility office under Section 3.01(i) (Swiss tax gross-up), then the new lender or Lender acting through its new office is only entitled to receive payment under those Sections to the same extent as the existing Lender or Lender acting through its previous facility office would have been if the assignment, transfer or change had not occurred. (vii) An assignment of rights will only be effective once the assignee notifies the Collateral Agent of its identity and status by delivering to it a Notification of Interest substantially in the form of Schedule E (Form of Notification of Interest) and on: (A) receipt by the Multicurrency Administrative Agent of written confirmation from the new lender (in form and substance 206 [Published CUSIP Number: ____] satisfactory to the Multicurrency Administrative Agent) that the new lender will assume the same obligations to the other Lenders as it would have been under if it was an original lender; and (B) performance by the Multicurrency Administrative Agent of all "know your customer" or other checks relating to any person that it is required to carry out in relation to such assignment to a new lender, the completion of which the Multicurrency Administrative Agent shall promptly notify to the existing lender and the new lender. (viii) For the avoidance of doubt, nothing in this Section 11.06(j) restricts any Lender or sub-participant from entering into any agreement with another person under which payments are made by reference to any of the Loan Documents (including without limitation credit default or total return swaps), provided such agreement is not treated as a sub-participation for purposes of the Guidelines nor purports to give such other person, whether upon the occurrence of any contingency or otherwise, any (1) legal or beneficial rights under the Loan Documents, (2) right to direct the exercise by the Lender or sub-participant (as applicable) of any rights it may have under the Loan Documents or any sub-participation agreement, or (3) right to require physical delivery of any interest (including some or all of any loan, or other interest) in the Loan Documents under any circumstances. In case a sub-participation in the meaning of the Guidelines is contemplated, the rules provided by Section 11.06(j) above apply mutatis mutandis. (ix) If the Non-Bank Rules are disapplied or amended in any material respect from their form as at the date of this Agreement, the Swiss Borrower or the Multicurrency Administrative Agent may (and the Multicurrency Administrative Agent shall, at the request of the Lenders) request in writing to the Multicurrency Administrative Agent or the Swiss Borrower, as the case may be, that this Agreement be amended to reflect such change. The Swiss Borrower and the Lenders shall enter into discussions for a period of not more than thirty (30) days with a view to agreeing any amendments required to be made to this Agreement to place the Swiss Borrower and the Lenders in substantially the same position (or otherwise in a position acceptable to the Swiss Borrower and the Lenders) from a Swiss withholding tax viewpoint as they would have been in if the change notified under this Section 11.06(j)(ix), had not happened. Any agreement between the Swiss Borrower and the Multicurrency Administrative Agent will be, with the prior consent of the Lenders, binding on all the parties hereto; if no agreement is reached under this Section 11.06(j)(ix), this Agreement shall continue in effect in accordance with its terms. 11.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each of the Administrative Agents, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be 207 [Published CUSIP Number: ____] disclosed (a) to its Affiliates and to its and its Affiliates' respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Borrower and its obligations, (g) with the prior written consent of the Company or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to any Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company; provided that with respect to subsections (b) and (c) above, (A) to the extent permitted by applicable Law and to the extent the applicable Administrative Agent will not, in its reasonable judgment, incur legal liability for doing so, such Administrative Agent shall provide the Company with prior written notice of the request for disclosure, (B) to the extent permitted by applicable Law, such Administrative Agent will cooperate with the Company's reasonable efforts to obtain a protective order or similar confidential treatment; and (C) such Administrative Agent shall disclose only that portion of the Information that it determines in its good faith judgment to be required to company with such request or requirement. For purposes of this Section, "Information" means all information received from the Company or any Subsidiary relating to the Company or any Subsidiary or any of their respective businesses, other than any such information that is available to any Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any Subsidiary, provided that, in the case of information received from the Company or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as a prudent Person would accord to its own confidential information. Each of the Administrative Agents, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Company or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including federal and state securities Laws. 208 [Published CUSIP Number: ___] 11.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Multicurrency Administrative Agent, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower or any other Loan Party against any and all of the obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Company and the Multicurrency Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. 11.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the "Maximum Rate"). If any Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the interest contracted for, charged, or received by such Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. 11.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by each Administrative Agent and when the Multicurrency Administrative Agent shall have received counterparts hereof that, when taken 209 [Published CUSIP Number: ___] together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement. 11.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and warranties made hereunder and in any other Loan Document survive the execution and delivery hereof. Such representations and warranties have been or will be relied upon by each Administrative Agent and each Lender, regardless of any investigation made by any Administrative Agent or any Lender or on their behalf and notwithstanding that any Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. 11.12 SEVERABILITY. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 11.13 REPLACEMENT OF LENDERS. If any Lender (a) requests compensation under Section 3.04 or Section 3.01, or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (b) does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders or (c) if any Lender is a Defaulting Lender, then the Company may, at its sole expense and effort, upon notice to such Lender and the Multicurrency Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that: (i) the Company shall have paid (or caused a Foreign Borrower to pay) to the applicable Administrative Agent the assignment fee specified in Section 11.06(b); (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents 210 [Published CUSIP Number: ___] (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or applicable Foreign Borrower (in the case of all other amounts); (iii) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; (iv) such assignment does not conflict with applicable Laws. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply. 11.14 GOVERNING LAW; JURISDICTION; ETC. (a) GOVERNING LAW. THIS AGREEMENT (OTHER THAN SECTION 8.01(f)(ii) WHICH SHALL BE CONSTRUED IN ACCORDANCE WITH THE LEGISLATION OF ENGLAND AND WALES) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. (b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. 211 [Published CUSIP Number: ___] (c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. 11.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 11.16 NO ADVISORY OR FIDUCIARY RESPONSIBILITY. In connection with all aspects of each transaction contemplated hereby, each Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates' understanding, that: (i) the credit facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm's-length commercial transaction between the Borrowers, the other Loan Parties and their respective Affiliates, on the one hand, and any Administrative Agent and the Arrangers, on the other hand, and the Borrowers and the other Loan Parties are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) 212 [Published CUSIP Number: ___] in connection with the process leading to such transaction, each Administrative Agent and the Arrangers, are and have been acting solely as a principal and is not the financial advisor, agent or fiduciary, for any of the Borrower, any other Loan Parties or any of their respective Affiliates, stockholders, creditors or employees or any other Person; (iii) neither any Administrative Agent nor any other Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in favor of any Borrower or any other Loan Party with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any Administrative Agent or any other Arranger has advised or is currently advising any of the Borrowers, the other Loan Parties or their respective Affiliates on other matters) and neither any Administrative Agent nor any other Arranger has any obligation to any of the Borrowers, the other Loan Parties or their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) any Administrative Agent and the other Arranger(s) and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers, the other Loan Parties and their respective Affiliates, and neither any Administrative Agent nor any other Arranger has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agents and the other Arranger(s) have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each Borrower and each other Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each Borrower and each other Loan Party hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against each Administrative Agent and the other Lead Arranger(s) with respect to any breach or alleged breach of agency or fiduciary duty. 11.17 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as hereinafter defined) and the Multicurrency Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of each Borrower and other information that will allow such Lender or such Administrative Agent, as applicable, to identify such Borrower in accordance with the Act. 11.18 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Multicurrency Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of each Borrower in respect of any such sum due from it to the Multicurrency Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment 213 [Published CUSIP Number: ___] in a currency (the "Judgment Currency") other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the "Agreement Currency"), be discharged only to the extent that on the Business Day following receipt by the Multicurrency Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Multicurrency Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Multicurrency Administrative Agent from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Multicurrency Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Multicurrency Administrative Agent in such currency, the Multicurrency Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable law). 11.19 DESIGNATION AS SENIOR DEBT. All Obligations shall be "Designated Senior Indebtedness" for purposes of and as defined in that Convertible Note Documents. 11.20 AMOUNTS ON DEPOSIT WITH CANADIAN ADMINISTRATIVE AGENT. Each of the Loan Parties hereby agrees that any amounts held on deposit with the Canadian Administrative Agent may be invested by the Canadian Administrative Agent with a Schedule I Lender selected by the Canadian Administrative Agent. ARTICLE XII SPECIAL PROVISIONS APPLICABLE TO LENDERS UPON THE OCCURRENCE OF A SHARING EVENT 12.01 PARTICIPATIONS. Upon the occurrence of a Sharing Event, the Revolving Lenders shall automatically and without further action be deemed to have exchanged interests in the outstanding Revolving Loans and outstanding Letters of Credit such that, in lieu of the interests of each Revolving Lender in each Revolving Loan and each outstanding Letter of Credit, such Lender shall hold an interest in all Revolving Loans and Swing Line Loans made to the Borrowers and all outstanding Letters of Credit issued for the account of such Persons at such time, whether or not such Revolving Lender shall previously have participated therein, equal to such Revolving Lender's Exchange Percentage thereof. The foregoing exchanges shall be accomplished automatically pursuant to this clause (a) through purchases and sales of participations in the various Revolving Loans and outstanding Letters of Credit as required hereby, although at the request of the Multicurrency Administrative Agent each Revolving Lender hereby agrees to enter into customary participation agreements approved by the Multicurrency Administrative Agent to 214 [Published CUSIP Number: ___] evidence the same. All purchases and sales of participating interests pursuant to this Section 12.01(a) shall be made in U.S. Dollars. At the request of the Multicurrency Administrative Agent, each Revolving Lender which has sold participations in any of its Revolving Loans and outstanding Letters of Credit as provided above (through the Multicurrency Administrative Agent) will deliver to each Revolving Lender (through the Multicurrency Administrative Agent) which has so purchased a participating interest therein a participation certificate in the appropriate amount as determined in conjunction with the Multicurrency Administrative Agent. It is understood that the amount of funds delivered by each Revolving Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Revolving Lenders as required above. 12.02 MULTICURRENCY ADMINISTRATIVE AGENT'S DETERMINATIONS BINDING. All determinations by the Multicurrency Administrative Agent pursuant to this Article XII shall be made by it in accordance with the provisions herein and with the intent being to equitably share the credit risk for all Revolving Loans and Letters of Credit and other Credit Extensions under the Revolving Facility in accordance with the provisions hereof. Absent manifest error, all determinations by the Multicurrency Administrative Agent hereunder shall be binding on the Loan Parties and each of the Revolving Lenders. The Multicurrency Administrative Agent shall have no liability to any Loan Party or Revolving Lender hereunder for any determinations made by it hereunder except to the extent resulting from the Multicurrency Administrative Agent's gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). 12.03 PARTICIPATION PAYMENTS IN U.S. DOLLARS. Upon, and after, the occurrence of a Sharing Event (i) no further Credit Extensions shall be made, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, Revolving Loans denominated in an Foreign Currency (including, without limitation, any interest and other amounts which were accrued but unpaid on the date of such Sharing Event) shall be payable in U.S. Dollars (taking the Dollar Equivalents of all such amounts on the date of the occurrence of the respective Sharing Event, with all calculations for periods after the Sharing Event being made as if such respective Revolving Loan had originally been made in U.S. Dollars) and shall be distributed by the Multicurrency Administrative Agent for the account of the Revolving Lenders which made such Revolving Loans or are participating therein and (iii) all Revolving Commitments shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Revolving Lender to purchase its participating interests as required above in any extensions of credit upon the occurrence of a Sharing Event shall not relieve any other Revolving Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Revolving Lender shall be responsible for the failure of any other Revolving Lender to purchase the participating interest to be purchased by such other Revolving Lender on any date. 12.04 DELINQUENT PARTICIPATION PAYMENTS. If any amount required to be paid by any Revolving Lender pursuant to this Article XII is not paid to the Multicurrency Administrative Agent on the date upon which the Sharing Event 215 [Published CUSIP Number: ___] occurred, such Revolving Lender shall, in addition to such aforementioned amount, also pay to the Multicurrency Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Revolving Lender for the purchase of its participations, (ii) the daily average federal Funds Rate, during the period from and including the date of request for payment to the date on which such payment is immediately available to the Multicurrency Administrative Agent and (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. A certificate of the Multicurrency Administrative Agent submitted to any Revolving Lender with respect to any amounts payable under this Article XII shall be conclusive in the absence of manifest error. Amounts payable by any Revolving Lender pursuant to this Article XII shall be paid to the Multicurrency Administrative Agent for the account of the relevant Revolving Lenders, provided that, if the Multicurrency Administrative Agent (in its sole discretion) has elected to fund on behalf of such other Revolving Lender the amounts owing to such other Revolving Lenders, then the amounts shall be paid to the Multicurrency Administrative Agent for its own account. 12.05 SETTLEMENT OF PARTICIPATION PAYMENTS. Whenever, at any time after the relevant Revolving Lenders have received from any other Revolving Lenders purchases of participations pursuant to this Article XII, the various Revolving Lenders receive any payment on account thereof, such Revolving Lenders will distribute to the Multicurrency Administrative Agent, for the account of the various Revolving Lenders participating therein, such Revolving Lenders' participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received, provided, however, that in the event that such payment received by any Revolving Lenders is required to be returned, the Revolving Lenders who received previous distributions in respect of their participating interests therein will return to the respective Revolving Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Revolving Lenders. 12.06 PARTICIPATION OBLIGATIONS ABSOLUTE. Each Revolving Lender's obligation to purchase participating interests pursuant to this Article XII shall be absolute and unconditional and shall not be affected by any circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Revolving Lender may have against any other Revolving Lender, any Loan Party or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of any Loan Party or any other Person, (iv) any breach of this Agreement by any Loan Party, any Revolving Lender or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. 12.07 INCREASED COSTS; INDEMNITIES. Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, (i) each Revolving Lender which has purchased 216 [Published CUSIP Number: ___] such participations shall be entitled to receive from the Borrowers any increased costs and indemnities (including, without limitation, pursuant to Sections 3.01, 3.04, 3.05, 3.06 and 11.04) directly from Borrowers to the same extent as if it were the direct Revolving Lender as opposed to a participant therein, which increased costs shall be calculated without regard to Section 11.06 or Section 11.13 and (ii) each Revolving Lender which has sold such participations shall be entitled to receive from the Borrowers indemnification from and against any and all Taxes imposed as a result of the sale of the participations pursuant to this Article XII. Each Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving effect to the requirements of this Article XII, increased Taxes may be owing by it pursuant to Section 3.01, which Taxes shall be paid (to the extent provided in Section 3.01) by the respective Borrower or Borrowers, without any claim that the increased Taxes are not payable because same resulted from the participations effected as otherwise required by this Article XII. 217 [Published CUSIP Number: ___] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. BORROWERS: INVACARE CORPORATION, an Ohio corporation By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: President and COO ------------------------------------------ CARROLL HEALTHCARE INC., an Ontario corporation By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: President ------------------------------------------ INVACARE AUSTRALIA PTY LTD, an Australian corporation By: /s/ McGregor Ogilvy Grant ----------------------------------------- Name: McGregor Ogilvy Grant ------------------------------------------- Title: Attorney ------------------------------------------ INVACARE HOLDINGS C.V., a Dutch limited partnership By: /s/ Dale C. LaPorte --------------------------------------------- Name: Dale C. LaPorte ------------------------------------------- Title: Secretary of Invacare Holdings, LLC ------------------------------------------ a general partner of Invacare Holdings C.V. ---------------------------------------- INVACARE INTERNATIONAL SARL, a Swiss corporation By: /s/ Theo Vassiloudis --------------------------------------------- Name: Theo Vassiloudis ------------------------------------------- Title: FD - Europe ------------------------------------------ [Published CUSIP Number: ___] INVACARE LIMITED, a private limited company organized under the laws of England and Wales By: /s/ Mark Prosser --------------------------------------------- Name: Mark Prosser ------------------------------------------- Title: Managing Director ------------------------------------------ SCANDINAVIAN MOBILITY INTERNATIONAL APS, a Danish private limited company By: /s/ Theo Vassiloudis --------------------------------------------- Name: Theo Vassiloudis ------------------------------------------- Title: FD - Europe ------------------------------------------ [Published CUSIP Number: ___] DOMESTIC GUARANTORS: ADAPTIVE SWITCH LABORATORIES, INC., a Texas corporation INVACARE FLORIDA CORPORATION, a Delaware corporation INVACARE CREDIT CORPORATION, an Ohio corporation THE AFTERMARKET GROUP, INC., a Delaware corporation THE HELIXX GROUP, INC., an Ohio corporation CHAMPION MANUFACTURING INC., a Delaware corporation HEALTHTECH PRODUCTS, INC., a Missouri corporation INVACARE CANADIAN HOLDINGS, INC., a Delaware corporation INVACARE INTERNATIONAL CORPORATION, an Ohio corporation By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: President ------------------------------------------ KUSCHALL, INC., a Delaware corporation ALTIMATE MEDICAL, INC., a Minnesota corporation INVACARE SUPPLY GROUP, INC., a Massachusetts corporation INVACARE HOLDINGS, LLC, an Ohio limited liability company By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: President ------------------------------------------ [Published CUSIP Number: ___] FREEDOM DESIGNS, INC., a California corporation By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: President ------------------------------------------ GARDEN CITY MEDICAL INC., a Delaware corporation MEDBLOC, INC., a Delaware corporation By: /s/ Dale C. LaPorte --------------------------------------------- Name: Dale C. LaPorte ------------------------------------------- Title: Secretary ------------------------------------------ INVACARE FLORIDA HOLDINGS, LLC, a Delaware limited liability company By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: President ------------------------------------------ [Published CUSIP Number: ___] CANADIAN GUARANTORS: 1207273 ALBERTA ULC, an Alberta corporation By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: President ------------------------------------------ 2083806 ONTARIO INC., an Ontario corporation By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: Vice President ------------------------------------------ 6123449 CANADA INC., a Canada corporation By: /s/ Dale C. LaPorte --------------------------------------------- Name: Dale C. LaPorte ------------------------------------------- Title: Secretary ------------------------------------------ INVACARE CANADA L.P., an Ontario limited partnership By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: Vice President ------------------------------------------ INVACARE CANADA GENERAL PARTNER INC., a Canada corporation By: /s/ Gerald B. Blouch --------------------------------------------- Name: Gerald B. Blouch ------------------------------------------- Title: Vice President ------------------------------------------ [Published CUSIP Number: ___] MOTION CONCEPTS L.P., an Ontario limited partnership By: /s/ Dale C. LaPorte --------------------------------------------- Name: Dale C. LaPorte ------------------------------------------- Title: Secretary ------------------------------------------ PERPETUAL MOTION ENTERPRISES LIMITED, an Ontario corporation By: /s/ Dale C. LaPorte --------------------------------------------- Name: Dale C. LaPorte ------------------------------------------- Title: Secretary ------------------------------------------ [Published CUSIP Number: ___] AUSTRALIAN GUARANTORS: ADELAIDE SCOOTERS & WHEELCHAIRS PTY LTD, an Australian corporation By: /s/ McGregor Ogilvy Grant ----------------------------------------- Name: McGregor Ogilvy Grant ------------------------------------------- Title: Attorney ------------------------------------------ AUSTRALIAN HEALTHCARE EQUIPMENT PTY LTD, an Australian corporation By: /s/ McGregor Ogilvy Grant --------------------------------------------- Name: McGregor Ogilvy Grant ------------------------------------------- Title: Attorney ------------------------------------------ HOME HEALTH EQUIPMENT PTY LTD, an Australian corporation By: /s/ McGregor Ogilvy Grant --------------------------------------------- Name: McGregor Ogilvy Grant ------------------------------------------- Title: Attorney ------------------------------------------ MORRIS SURGICAL PTY LTD, an Australian corporation By: /s/ McGregor Ogilvy Grant --------------------------------------------- Name: McGregor Ogilvy Grant ------------------------------------------- Title: Attorney ------------------------------------------ [Published CUSIP Number: ___] FOREIGN GUARANTORS: INVACARE A/S, a Danish limited liability company By: /s/ Theo Vassiloudis --------------------------------------------- Name: Theo Vassiloudis ------------------------------------------- Title: FD - Europe ------------------------------------------ INVACARE B.V., a Dutch private limited liability company By: /s/ Theo Vassiloudis --------------------------------------------- Name: Theo Vassiloudis ------------------------------------------- Title: FD - Europe ------------------------------------------ INVACARE EC-HONG A/S, a Danish limited company By: /s/ Theo Vassiloudis --------------------------------------------- Name: Theo Vassiloudis ------------------------------------------- Title: FD - Europe ------------------------------------------ INVACARE HOLDINGS TWO B.V., a Dutch private limited liability company By: /s/ Theo Vassiloudis --------------------------------------------- Name: Theo Vassiloudis ------------------------------------------- Title: FD - Europe ------------------------------------------ INVACARE UK OPERATIONS LTD., a private limited company organized under the laws of England and Wales By: /s/ Mark Prosser --------------------------------------------- Name: Mark Prosser ------------------------------------------- Title: Managing Director ------------------------------------------ [Published CUSIP Number: ___] KUSCHALL AG, a Swiss corporation By: /s/ Theo Vassiloudis --------------------------------------------- Name: Theo Vassiloudis ------------------------------------------- Title: FD - Europe ------------------------------------------ [Published CUSIP Number: ___] NATIONAL CITY BANK, as Multicurrency Administrative Agent, Multicurrency Collateral Agent, L/C Issuer and Swing Line Lender By: /s/ Robert Coleman --------------------------------------------- Name: Robert Coleman ------------------------------------------- Title: Senior Vice President ------------------------------------------ [Published CUSIP Number: ___] NATIONAL CITY BANK, CANADA BRANCH as Canadian Administrative Agent and Canadian Collateral Agent By: /s/ Caroline M. Stade --------------------------------------------- Name: Caroline M. Stade ------------------------------------------- Title: Senior Vice President ------------------------------------------ By: /s/ Bill Hines --------------------------------------------- Name: Bill Hines ------------------------------------------- Title: SVP and Principal Officer ------------------------------------------ [Published CUSIP Number: ___] BANK OF AMERICA, N.A. By: /s/ Richard C. Hardison --------------------------------------------- Name: Richard C. Hardison ------------------------------------------- Title: Vice President ------------------------------------------ [Published CUSIP Number: ___] KEYBANK NATIONAL ASSOCIATION By: /s/ J. T. Taylor --------------------------------------------- Name: J. T. Taylor ------------------------------------------- Title: Senior Vice President - Debt Capital Markets ------------------------------------------ [Published CUSIP Number: ___] BANC OF AMERICA SECURITIES ASIA LIMITED, as Australian Administrative Agent and Australian Collateral Agent By: /s/Susana Yen --------------------------------------------- Name: Susana Yen ------------------------------------------- Title: Vice President ------------------------------------------ [Published CUSIP Number: ___] NATIONAL CITY BANK By: /s/ Robert S. Coleman ----------------------------------------- Name: Robert S. Coleman --------------------------------------- Title: Senior Vice President -------------------------------------- BMO CAPITAL MARKETS FINANCING, INC. By: /s/ Todd Kostelnik --------------------------------- Name: Todd Kostelnik ------------------------------- Title: Vice President ------------------------------ PNC BANK, N.A. By: /s/ Patrick Flaherty --------------------------------- Name: Patrick Flaherty ------------------------------- Title: Credit Officer ------------------------------ SUNTRUST BANK By: /s/ Helen C. Hartz --------------------------------- Name: Helen C. Hartz ------------------------------- Title: Vice President ------------------------------ LASALLE BANK NATIONAL ASSOCIATION By: /s/ Brian H. Gallagher --------------------------------- Name: Brian H. Gallagher ------------------------------- Title: Vice President ------------------------------ LASALLE COMMERCIAL LENDING A DIVISION OF ABN AMRO BANK N.V. By: /s/ Darcy Mack --------------------------------- Name: Darcy Mack ------------------------------- Title: First Vice President ------------------------------ By: /s/ H. Bayu Budiatmanto --------------------------------- Name: H. Bayu Budiatmanto ------------------------------- Title: Assistant Vice President ------------------------------ NORDEA BANK FINLAND PLC, ACTING THROUGH ITS NEW YORK AND GRAND CAYMAN BRANCHES By: /s/ Colin Williams Hawkes ----------------------------------------- Name: Colin Williams Hawkes --------------------------------------- Title: First Vice President - Head of Group -------------------------------------- Funding, NY ----------- By: /s/ Gerald E. Chelius, Jr. ----------------------------------------- Name: Gerald E. Chelius, Jr. --------------------------------------- Title: SVP Credit -------------------------------------- COOPERATIVE CENTRALE RAIFFEISEN- BOERENLEENBANK, B.A. "RABOBANK NEDERLAND", NEW YORK BRANCH By: /s/ Thomas K. Martin --------------------------------- Name: Thomas K. Martin ------------------------------- Title: Vice President ------------------------------ By: /s/ Rebecca Morrow --------------------------------- Name: Rebecca Morrow ------------------------------- Title: Executive Director ------------------------------ EX-99.1 7 l24661aexv99w1.txt EX-99.1 EXHIBIT 99.1 Investor Inquiries: Gregory C. Thompson (440) 329-6111 INVACARE CORPORATION ANNOUNCES CLOSING OF REFINANCING TRANSACTIONS ELYRIA, OHIO -- (FEBRUARY 12, 2007) -- Invacare Corporation (NYSE: IVC) ("Invacare" or the "Company") announced today the completion of its previously announced refinancing transactions. The new financing program provides the Company with total capacity of approximately $710 million, the net proceeds of which have been used to refinance substantially all of the Company's existing indebtedness and pay related fees and expenses. As part of the financing, the Company entered into a $400 million senior secured credit facility consisting of a $250 million term loan facility and a $150 million revolving credit facility. The Company's obligations under the new senior secured credit facility are secured by substantially all of the Company's assets and are guaranteed by its material domestic subsidiaries, with certain obligations also guaranteed by its material foreign subsidiaries. Borrowings under the new senior secured credit facility will generally bear interest at LIBOR plus a margin of 2.25%, including an initial facility fee of 0.50% per annum on the facility. The Company also completed the sale of $175 million principal amount of its 9 3/4% Senior Notes due 2015 to qualified institutional buyers pursuant to Rule 144A and to non-U.S. persons outside the United States in reliance on Regulation S under the Securities Act of 1933, as amended (the "Securities Act"). The notes are unsecured senior obligations of the Company guaranteed by substantially all of the Company's domestic subsidiaries, and pay interest at 9 3/4% per annum on each February 15 and August 15. The net proceeds to the Company from the offering of the notes, after deducting the initial purchasers' discount and the estimated offering expenses payable by the Company, were approximately $167 million. Also, as part of the refinancing, the Company completed the sale of $135 million principal amount of its Convertible Senior Subordinated Debentures due 2027 to qualified institutional buyers pursuant to Rule 144A under the Securities Act. The debentures are unsecured senior subordinated obligations of the Company guaranteed by substantially all of the Company's domestic subsidiaries, pay interest at 4.125% per annum on each February 1 and August 1, and are convertible upon satisfaction of certain conditions into cash, common shares of the Company, or a combination of cash and common shares of the Company, subject to certain conditions. The initial conversion rate is 40.3323 shares per $1,000 principal amount of debentures, which represents an initial conversion price of approximately $24.79 per share. The debentures are redeemable at the Company's option, subject to specified conditions, on or after February 6, 2012 through and including February 1, 2017, and at the Company's option after February 1, 2017. On February 1, 2017 and 2022 and upon the occurrence of certain circumstances, holders have the right to require the Company to repurchase all or some of their debentures. The net proceeds to the Company from the offering of the debentures, after deducting the initial purchasers' discount and the estimated offering expenses payable by the Company, were approximately $132.3 million. The notes, debentures and common shares issuable upon conversion of the debentures have not been registered under the Securities Act or the securities laws of any other jurisdiction and may not be offered or sold in the United States absent registration under, or an applicable exemption from, the registration requirements of the Securities Act and applicable state securities laws. A. Malachi Mixon, III, chairman and chief executive officer stated, "We are very pleased to have completed our refinancing program and believe that the long-term capital structure we have put in place gives us the platform to continue restructuring our business and assist us in carrying out our plans to overcome industry challenges and deliver improved operating income in 2007. We would like to thank our senior lenders, Bank of America, National City Bank and KeyBank, for their support through this refinancing." Invacare Corporation (NYSE: IVC), headquartered in Elyria, Ohio, is the global leader in the manufacture and distribution of innovative home and long-term care medical products that promote recovery and active lifestyles. The Company has 6,000 associates and markets its products in 80 countries around the world. For more information about the Company and its products, visit Invacare's website at www.invacare.com. This press release contains forward-looking statements within the meaning of the "Safe Harbor" provisions of the Private Securities Litigation Reform Act of 1995. Terms such as "will," "should," "plan," "intend," "expect," "continue," "forecast", "believe," "anticipate" and "seek," as well as similar comments, are forward-looking in nature. Actual results and events may differ significantly from those expressed or anticipated as a result of risks and uncertainties which include, but are not limited to, the following: possible adverse effects of being substantially leveraged, which could impact our ability to raise capital, limit our ability to react to changes in the economy or our industry or expose us to interest rate risks; changes in government and other third-party payor reimbursement levels and practices; consolidation of health care customers and our competitors; ineffective cost reduction and restructuring efforts; inability to design, manufacture, distribute and achieve market acceptance of new products with higher functionality and lower costs; extensive government regulation of our products; lower cost imports; increased freight costs; failure to comply with regulatory requirements or receive regulatory clearance or approval for our products or operations in the United States or abroad; potential product recalls; uncollectible accounts receivable; difficulties in implementing a new Enterprise Resource Planning system; legal actions or regulatory proceedings and governmental investigations; product liability claims; inadequate patents or other intellectual property protection; incorrect assumptions concerning demographic trends that impact the market for our products; provisions in our bank credit agreements or other debt instruments that may prevent or delay a change in control; the loss of the services of our key management and personnel; decreased availability or increased costs of raw materials could increase our costs of producing our products; inability to acquire strategic acquisition candidates because of limited financing alternatives; risks inherent in managing and operating businesses in many different foreign jurisdictions; exchange rate fluctuations, as well as the risks described from time to time in Invacare's reports as filed with the Securities and Exchange Commission. Except to the extent required by law, we do not undertake and specifically decline any obligation to review or update any forward-looking statements or to publicly announce the results of any revisions to any of such statements to reflect future events or developments or otherwise. ~~-----END PRIVACY-ENHANCED MESSAGE-----~~