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Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Issuer or one of its Restricted Subsidiaries
may apply such Net Proceeds (at the option of the Issuer or such Restricted Subsidiary):
(1)
to prepay, repay, purchase or redeem the Notes pursuant to an offer to all holders of Notes at a purchase price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest to (but not including) the date
of purchase (a "
Notes Offer
");
(2)
to repay Senior Debt;
(3)
to invest in Additional Assets;
(4)
to make capital expenditures;
(5)
any combination of the foregoing; or
(6)
enter into a binding commitment to apply the Net Proceeds pursuant to clause (2), (3) or (4) of this paragraph;
provided
that such binding commitment shall be treated as a permitted application of the Net Proceeds from
the date of such commitment until the earlier of (x) the date on which such repayment, investment or
expenditure is consummated, and (y) the 180th day following the expiration of the aforementioned 365-day
period.
Pending the final application of any Net Proceeds, the Issuer or any Restricted Subsidiary may temporarily reduce
revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by the Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant
will constitute "
Excess Proceeds
".
When the aggregate amount of Excess Proceeds exceeds $25.0 million, within 10 Business Days thereof, the Issuer will
make an offer to prepay, repay, purchase or redeem (an "
Asset Sale Offer
") from all holders of Notes and from the
holders of other Indebtedness that is
pari passu
with the Notes or any Note Guarantees that contain similar asset sale
provisions, to the extent required by the terms thereof, the maximum principal amount of Notes and such other
pari
passu
Indebtedness that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the
Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest and
Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of holders of Notes
on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If
any Excess Proceeds remain after the consummation of an Asset Sale Offer, the Issuer or any of its Restricted
Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and other
pari passu
Indebtedness tendered into (or to be prepaid or redeemed in connection
with) such Asset Sale Offer exceeds the amount of Excess Proceeds or if the aggregate amount of Notes tendered
pursuant to a Notes Offer exceeds the amount of the Net Proceeds so applied, the Trustee will select the Notes to be
purchased on a
pro rata
basis (or, in the case of Notes issued in global form as discussed under "
Book-Entry, Delivery
and Form
", based on a method that most nearly approximates a
pro rata
selection as the Trustee in its absolute discretion
deems fair and appropriate) unless otherwise required by applicable law or applicable stock exchange or depositary
requirements, based on the amounts tendered or required to be prepaid or redeemed. Upon the completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset to zero.
The Issuer will comply with the requirements of applicable securities laws and regulations to the extent those laws and
regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer, an Asset
Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations conflict with the
Change of Control, Asset Sale or Notes Offer provisions of the Indenture, the Issuer will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control,
Asset Sale or Notes Offer provisions of the Indenture by virtue of such compliance.
Selection and Notice
If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes for redemption on a
pro rata
basis (or, in the case of Notes issued in global form as discussed under "
Book-Entry, Delivery and Form
", based on a
method that most nearly approximates a
pro rata
selection) unless otherwise required by law or applicable stock
exchange or depository requirements.
No Notes of $200,000 or less can be redeemed in part. Notices of redemption will be mailed by first class mail at least 10
but not more than 60 days before the redemption date to each holder of Notes to be redeemed at its registered address,
except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in
connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.
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 of that Note that is to be redeemed. In case of certificated Notes, a new Note in principal amount equal
to the unredeemed portion of the original Note will be issued in the name of the holder of Notes upon cancellation of the
original Note. A notice of redemption shall state whether the redemption is conditioned on any events and, if so, a
