Common use of Additional Assets Clause in Contracts

Additional Assets. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Guarantor (or any Restricted Subsidiary) may apply those Net Proceeds at its option to any combination of the following: (I) to prepay, repay, redeem or repurchase Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes or other Indebtedness owed to the Issuer or an Affiliate of the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1012, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.

Additional Assets. Notwithstanding the foregoing, the 75% limitation referred to in clause (2) of the first paragraph of this Section 1115 shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with clause (2) of the first paragraph of this Section 1115 on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Guarantor Company (or any the applicable Restricted Subsidiary, as the case may be) may apply those such Net Proceeds Proceeds, at its option to any combination of the followingoption: (I1) to repay, prepay, repay, redeem or repurchase Secured Indebtednesspurchase (x) Indebtedness and other Obligations under a Credit Facility; provided, however, provided that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and, in the case of any such action with respect to a revolving Indebtedness, will cause Credit Facility shall be accompanied by a reduction of the related commitment commitments or facility amount, (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding (iy) any Subordinated Indebtedness and other Obligations that were secured by the assets sold in such Asset Sale or (iiz) any Notes or other pari passu Indebtedness owed to and Obligations with respect thereto; provided, that in the Issuer or an Affiliate case of this clause (z), the Issuer); provided that the Issuer Company shall also equally and ratably redeem or purchase Notes as described reduce Indebtedness under “—Optional Redemption,” through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or notes by making an offer (in accordance with the procedures set forth below for an Asset OfferSale) to all Holders holders to purchase the Notes at a purchase price equal to 100% of the principal amount thereof, plus the amount of accrued but and unpaid interest, if any, on the pro rata principal amount of Notes that would otherwise be prepaidNotes; (IV2) to invest in or acquire Additional Assets; or (V3) to make capital expenditures in respect of a Related Business of the Parent Guarantor’s Company or Restricted Subsidiary. provided that the Company and its Restricted Subsidiaries’ Permitted BusinessSubsidiaries will be deemed to have complied with this paragraph if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company or such Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate any such investment described in this paragraph with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days after the end of such 365-day period; provided, further, that if such commitment is later canceled or terminated before such Net Proceeds are applied or otherwise not applied within such 180 day period, then such Net Proceeds shall constitute “Excess Proceeds.” However, pending application or investment of such Net Proceeds as provided in clauses (1) through (3) of the immediately preceding paragraph, such Net Proceeds may be applied to temporarily reduce revolving credit Indebtedness. Any An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph clauses (1) through (3) above will constitute “Excess Proceeds.” If on the 366th day Within ten Business Days after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 20.0 million, within five days after such date, the Issuer Company will make an offer (the an “Asset Sale Offer”) to all Holders of Notes, Notes and all holders of other Indebtedness that is Pari Passu Indebtedness pari passu with the Notes containing provisions similar to those set forth in the Indenture this Section 1115 with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) purchase the maximum principal amount of Notes and such other Pari Passu pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased 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, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlementpurchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor Company or any Restricted Subsidiary 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 such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee Company will select use the Excess Proceeds to purchase the Notes to be purchased and such other pari passu Indebtedness on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy Notwithstanding the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to foregoing, the expiration sale, conveyance or other disposition of all or substantially all of the relevant 365-day period properties or with respect to Excess Proceeds assets of $25.0 million or lessthe Company and its Restricted Subsidiaries, taken as a whole, will be governed by Sections 901 and/or 1110 of this Supplemental Indenture, as applicable, and not by this Section 1115. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10121115, or compliance with this Section 1115 would constitute a violation of any such laws or regulations, the Issuer Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions this Section 1115 by virtue of such compliance. In the event that, pursuant to this Section 1115, the Company is required to commence an Asset Sale Offer, it will follow the procedures specified below: (1) The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 1115. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. (2) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

Additional Assets. Within 365 days after the receipt of any (b) The Net Proceeds from an Asset Sale, the Parent Guarantor Available Cash (or any portion thereof) from Asset Sales may be applied by the Issuer or a Restricted Subsidiary) may apply those Net Proceeds at its option , to any combination of the following: (I) to prepay, repay, redeem or repurchase Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), extent the Parent Guarantor Issuer or such Restricted Subsidiary will retire such Indebtedness and, in elects (or is required by the case terms of revolving Indebtedness, will cause the related commitment (if anyany Debt) to be permanently reduced in an amount equal to the principal amount so retired;to: (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding (i) permanently prepay or permanently Repay any Subordinated Indebtedness and (A) Debt under any Credit Facility, (B) Debt which had been secured by the assets sold in the relevant Asset Sale, or (C) Debt of a Restricted Subsidiary that is not a Guarantor; and/or (ii) any Notes or other Indebtedness owed to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary). (c) Any Net Available Cash from an Affiliate of the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (Asset Sale not applied in accordance with Section 4.12(b) within 365 days from the procedures set forth below for date of the receipt of such Net Available Cash shall constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $25.0 million (taking into account income earned on such Excess Proceeds, if any), the Issuer will be required to make an Asset offer to repurchase (the “Prepayment Offer”) the Notes, which offer shall be in the amount of the Allocable Excess Proceeds (rounded to all Holders the nearest $1,000), on a pro rata basis according to principal amount, at a purchase the Notes at price equal to 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to but not including the repurchase date of settlement, (subject to the right of Holders of record on the relevant record date to receive interest due on an the relevant interest payment date date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in the Indenture. To the extent that is on or prior any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders of Notes have been given the opportunity to tender their Notes for repurchase in accordance with the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferIndenture, the Parent Guarantor Issuer or any such Restricted Subsidiary may use those Excess Proceeds such remaining amount for any purpose not otherwise prohibited permitted by the Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at to zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1012, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.

Additional Assets. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Guarantor Company (or any Restricted Subsidiary) may apply those Net Proceeds at its option to any combination of the following: (I) to prepayoptionally make any payment on or purchase, repayrepurchase, redeem redeem, defease or repurchase Secured Indebtednessotherwise acquire or retire for value the notes or make any payment on purchase, repurchase, redeem, defease or otherwise acquire or retire for value Priority Lien Debt, other than the notes, that is subject to a Priority Lien or Indebtedness of a Restricted Subsidiary that is not a Guarantor; provided, however, provided that, if the Company or any Restricted Subsidiary shall so make any payment on or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Priority Lien Debt in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant addition to this clause the notes (Iother than First Out Debt), the Parent Guarantor Company or such Restricted Subsidiary will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) purchase redeem or repay on a permanent basis other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes or other Indebtedness owed to the Issuer or an Affiliate of the Issuer); provided that the Issuer shall equally and ratably redeem repurchase (or purchase Notes offer to repurchase) the notes as described provided either, at the Company’s option, under “—Optional Redemption,” Section 3.07 herein, through open open-market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereofthereof plus accrued but unpaid interest, if any) or by making an offer (in accordance with the procedures set forth below for an Asset OfferSale Offer (as defined below)) to all Holders to purchase the Notes their notes at 100% of the principal amount thereof, thereof plus the amount of accrued but and unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IVII) to (A) optionally make any payment on or purchase, repurchase, redeem, defease or otherwise acquire or retire for value 2021 Notes or, if the 2021 Notes have been purchased, repurchased, redeemed, defeased or otherwise acquired or retired in full, up to $150.0 million in aggregate principal amount of 2023 Notes or (B) make an Investment in SN UnSub, including for the purpose of investment in the Oil and Gas Properties of SN UnSub or making any payment on, or repurchasing, redeeming or otherwise acquiring or retiring for value outstanding preferred units in SN UnSub, in the case of clauses (A) and (B), in an aggregate amount under this clause (II) not to exceed $500.0 million; (III) to invest in or acquire Additional Assets; or (VIV) to make capital expenditures in respect of the Parent GuarantorCompany’s or any Restricted Subsidiary’s Oil and Gas Business. The requirement of clause (II)(B), (III) or (IV) of the preceding paragraph shall be deemed to be satisfied if a bona fide binding contract not prohibited by this Indenture committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries’ Permitted BusinessSubsidiaries with a Person other than a Restricted Subsidiary within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within six months following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce Indebtedness under its First Out Credit Facility or otherwise expend or invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 40.0 million, within five days after such date, the Issuer Company will make an offer (the “Asset Sale Offer”) to all Holders of NotesHolders, and if required by the terms of other Priority Lien Debt, to all holders of such other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assetsPriority Lien Debt, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness Priority Lien Debt, if applicable (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the this Indenture. If the aggregate principal amount of Notes and other Priority Lien Debt, if applicable, tendered into in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesNotes and other Priority Lien Debt, if applicable, the Trustee will select the Notes and the Company shall select such other Priority Lien Debt to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriateappropriate and the selection of such Priority Lien Debt shall be made pursuant to the terms of such Priority Lien Debt), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor Company may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 40.0 million or less. The provisions under the this Indenture relative to the Parent GuarantorCompany’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes (including, without limitation, Additional Notes, if any). The Issuer Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes and other Priority Debt, if applicable, pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10124.10, the Issuer Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance. All references herein to “Net Proceeds” and “Excess Proceeds” shall be deemed to mean cash in an amount equal to the amount of Net Proceeds or Excess Proceeds but not necessarily the actual cash received from the relevant Asset Sale. The Company and its Subsidiaries shall have no obligation to segregate, trace or otherwise identify Net Proceeds or Excess Proceeds (other than the amount thereof), it being agreed that cash is fungible and that the Company’s obligations under this covenant may be satisfied by the application of funds from other sources.

Additional Assets. (a) Within 365 one hundred eighty (180) days after following the Closing Date, the Purchaser may, at its expense, take possession of any items of furniture, fixtures and equipment which comprise the Assets, which are located at any Excluded Leasehold, except such Assets (i) that are being used or planned for use by any third party subtenant at such Excluded Leasehold or (ii) that the landlord of such Excluded Leasehold has any rights therein at the end of the leasehold term relating to such Excluded Leasehold (the "Additional Assets"). Upon reasonable prior written notice to the Seller, the Purchaser shall be afforded access to such Excluded Leaseholds in order to remove any such Additional Assets, other than Excluded Leaseholds that are being occupied by third party subtenants. Following the date hereof the Seller shall give the Purchaser written notice in the event any Excluded Leasehold is being sublet, terminated or otherwise disposed of, specifying the location of such Excluded Leasehold. The Purchaser may, within ten (10) Business Days from the receipt of such notice, remove any Net Proceeds from an Asset Sale, the Parent Guarantor (or Additional Assets located at such Excluded Leasehold and shall thereafter forfeit any Restricted Subsidiary) may apply those Net Proceeds at its option rights to any combination of the following:Additional Assets located at such Excluded Leasehold. (Ib) to prepayThe Purchaser shall take any Additional Asset on an "as is/where is" basis, repay, redeem or repurchase Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes or other Indebtedness owed to the Issuer or an Affiliate of the Issuer); provided acknowledges that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy the foregoing obligation Seller makes no representation nor warranty whatsoever with respect to any Excess Proceeds by making an Asset Sale Offer prior Additional Asset. (c) The Purchaser shall indemnify and hold harmless the Seller and its Affiliates from and against any Losses arising out of or relating to the expiration removal of any Additional Assets, including without limitation, any cost, expenses or liabilities which the relevant 365-day period Seller or with respect to Excess Proceeds any of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale its Affiliates may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable incur in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions restoration of any securities laws or regulations conflict with Excluded Leasehold required due to the provisions removal of this Section 1012, any Additional Assets by the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliancePurchaser.

Additional Assets. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Guarantor (or any Restricted Subsidiary) may apply those Net Proceeds at its option to any combination of the following: (I) to prepay, repay, redeem or repurchase Secured IndebtednessIndebtedness or, in the case such Net Proceeds are received in respect of properties or assets of a Restricted Subsidiary that is not a Note Party, Indebtedness of a Restricted Subsidiary that is not a Note Party; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) to purchase or repay on a permanent basis other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes or other Indebtedness owed to the Issuer or an Affiliate of the IssuerIssuer (other than a Specified Holder)); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date Interest Payment Date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee Issuer will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriaterequire), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in minimum denominations of $2,000, or an 2,000 and integral multiple multiples of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 101210.12, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.

Additional Assets. Within 365 days after the receipt of If any Net Proceeds from an Asset Sale, the Parent Guarantor material assets (including any real property or improvements thereto or any Restricted Subsidiaryinterest therein) may apply those Net Proceeds at its option to are acquired by any combination of the following: Obligated Party after September 21, 2001 (I) to prepay, repay, redeem or repurchase Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding than: (i) any Subordinated Indebtedness and assets constituting Collateral under the Collateral Documents that become subject to the Lien of the Collateral Documents upon acquisition thereof, (ii) assets financed with indebtedness permitted by the Revolver Agreement, (iii) assets encumbered by other consensual Liens permitted by the Revolver Agreement, and (iv) any Notes Synthetic Property or any SPV Finance Documents) or if any Lien encumbering any material assets (other Indebtedness owed than the Synthetic Property) which are not Collateral as of September 21, 2001 are released or otherwise discharged after September 21, 2001, Borrower will notify the Collateral Agent thereof, and, if requested by the Collateral Agent or the Required Creditors, Borrower will cause such assets to be subjected to a Lien in favor of the Collateral Agent securing the Obligations and will take, and cause the applicable other Obligated Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in paragraph (a) of this Section but subject to the Issuer or an Affiliate of the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those exclusions set forth in the Indenture with respect to offers to purchaseSecurity Agreement, prepay or redeem with all at the proceeds expense of sales the Obligated Parties. The Borrower acknowledges that the fee and leasehold interests of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, the Borrower in the case of Pari Passu Indebtedness issued with significant original issue discountreal property and related improvements located in Faulkner County, based Conway, Arkansas which becamx xxxxxxmbered on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expensesor about July 3, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, 2002 are subject to the right provisions of Holders of record on the relevant record date forgoing sentence and the Collateral Agent or the Required Creditors may require the Borrower to receive interest due on an interest payment date that grants Liens therein at any time as long as such property is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited then encumbered by a Lien permitted by the IndentureRevolver Agreement. If the aggregate principal amount Collateral Agent requests when: (i) an Event of Notes tendered into such Asset Sale Offer exceeds the amount Default under clause (a) or (b) of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis Article VIII (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration payment defaults) of the relevant 365-day period Revolver Agreement exists or with respect to Excess Proceeds (ii) an Event of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes Default arising as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will failure to comply with the requirements covenants in Article VII (the financial covenants) of Rule 14e-1 under the Exchange Act Revolver Agreement exists which has not been cured or waived within 30 days after the occurrence thereof, the Borrower will, and will cause any other securities laws Obligated Party who has any interest in any Synthetic Property or SPV Finance Documents to, grant Liens in favor of the Collateral Agent to secure the Obligations in all the Synthetic Property and regulations thereunder SPV Finance Documents which are not encumbered by a Lien permitted by the Revolver Agreement and will take, and cause the applicable other Obligated Parties to take, such actions as shall be necessary or reasonably requested by the extent those laws Collateral Agent to grant and regulations are applicable perfect such Liens, including actions described in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions paragraph (a) of this Section 1012but subject to the exclusions set forth in the Security Agreement, all at the Issuer will comply with expense of the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such complianceObligated Parties.

Additional Assets. Within 365 days (a) If Borrower, the REIT or ----------------- any subsidiary or affiliate thereof acquires any Real Property Asset after the receipt date hereof, and all or a portion of any Net Proceeds from an Asset SaleAdvance hereunder is used in whole or in part to acquire such Real Property Asset, it shall notify Agent and together with such notification, deliver to Agent, with respect to such Real Property Asset, such items as Agent and the Parent Guarantor (or any Restricted Subsidiary) Co-Lenders may apply those Net Proceeds at its option to any combination reasonably request, which information shall be current as of the following: (I) date delivered, and shall include, without limitation, all the documentation and information required pursuant to prepaySection 2.21 hereof. If such Real Property Asset is owned by a Loan Party other than a Guarantor or Borrower, repaysuch Loan Party shall execute and deliver a guaranty in the form of the Guaranty. Such Asset shall immediately be mortgaged to Lender and Lender shall have a perfected first Lien on such Asset. Borrower shall, redeem or repurchase Secured Indebtedness; providedwith respect to said Real Property Asset, howeveramong other things, thatexecute and deliver to Agent all documentation, certifications, reports and polices necessary to create and perfect said Lien and required in connection with the acquisition of the West 44/th/ Street Property. (b) Upon Borrower's, the REIT's or any prepayment, repayment, redemption repurchase subsidiary or affiliate thereof acquisition of Indebtedness fee title to the Bar Building pursuant to this clause (I)the Bar Building Settlement Agreement, the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding Borrower shall simultaneously with said acquisition (i) any Subordinated Indebtedness have the existing mortgages assigned to Lender, to the extent not owned by Lender, and said mortgages shall be modified, consolidated and spread with the Lien of the Security Instrument and (ii) any Notes or other Indebtedness owed add and subject the Bar Building to the Issuer or an Affiliate Lien of the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Offer) to all Holders to purchase the Notes at 100% of the principal amount thereofLoan Documents, plus the amount of accrued but unpaid interestincluding, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such datewithout limitation, the Issuer will make an offer (the “Asset Sale Offer”) Security Instrument, as a first lien thereon. Borrower shall also deliver to all Holders of NotesAgent, and all holders of among other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture things, with respect to offers the Bar Building those terms required pursuant to purchaseSection 2.21(i), prepay (iv), (v) and (viii) hereof. (c) Upon Borrower's, the REIT's or redeem any subsidiary or affiliate thereof acquisition of fee title to the 10 Xxxxxxx Xxxxx, Borrower shall simultaneously with said acquisition add and subject 10 Xxxxxxx Xxxxx to the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out Lien of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interestLoan Documents, if anyincluding, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offerwithout limitation, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the IndentureSecurity Instrument, as a first lien thereon. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated Borrower shall also deliver to the purchase of NotesAgent, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require oramong other things, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy the foregoing obligation with respect to 10 Xxxxxxx Xxxxx those terms required puthe REIT's or any Excess Proceeds by making an Asset Sale Offer prior subsidiary or affiliate thereof acquisition of any other material Asset, Borrower shall simultaneously with said acquisition notify Agent and deliver to the expiration of the relevant 365-day period or Agent, with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes said Asset, all documentation, reports and information as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1012, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions reasonably requested by virtue of such complianceAgent.

Additional Assets. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Guarantor (or any Restricted Subsidiary) may apply those Net Proceeds at its option to any combination of the following: (I) to prepay, repay, redeem or repurchase Secured IndebtednessFirst Priority Obligations; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), (a) the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; retired and (IIb) if the asset that is subject to purchase Notes; the Asset Sale is subject to a Lien securing the First Priority LC Obligations that ranks pari passu with (IIIand is not subject to a waterfall provision with seniority to) purchase the Indenture Obligations, the Parent Guarantor or repay such Restricted Subsidiary will redeem or repurchase (or offer to redeem or repurchase) the Notes on a permanent pro rata (or greater) basis with any other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes First Priority Obligations being prepaid, repaid, redeemed or other Indebtedness owed to repurchased, at the Issuer or an Affiliate of the Issuer); Company’s option, as provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” Section 1103 herein, through open market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IVII) to purchase Notes; (III) to invest in or acquire Additional Assets; or (VIV) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. provided that to the extent that the assets sold pursuant to this Section constituted Collateral, the Additional Assets received as consideration or that were acquired or invested in and the assets in respect of which such capital expenditures were made shall be owned by Note Parties. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness constitutes First Priority Obligations containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tenderedother First Priority Obligations) the maximum principal amount of Notes and such other Pari Passu Indebtedness First Priority Obligations (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee Issuer will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriaterequire), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in minimum denominations of $2,0001.00, or an integral multiple of $1,000 1.00 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1012, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.

Additional Assets. Within 365 days after In the receipt event of any Net Proceeds from an Asset Sale, Disposition that requires the Parent Guarantor purchase of Notes (or any Restricted Subsidiary) may apply those Net Proceeds at its option to any combination of the following: (I) to prepay, repay, redeem or repurchase and other First-Priority Stock Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (IDebt), the Parent Guarantor or such Restricted Subsidiary Company will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes or other Indebtedness owed to the Issuer or an Affiliate of the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases tendered pursuant to an Asset Disposition Offer by the Company for the Notes (to the extent and such purchases are other First-Priority Stock Secured Debt) at or above a purchase price of 100% of the their principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness event such other First-Priority Stock Secured Debt was issued with significant original issue discount, based on 100% of the accreted value thereof) tendered) the maximum principal amount ), without premium, plus accrued but unpaid interest and Special Interest, if any (or, in respect of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expensesFirst-Priority Stock Secured Debt, including premiumssuch other price, incurred in connection therewith) that not to exceed 100%, as may be purchasedprovided for by the terms of such other First-Priority Stock Secured Debt), prepaid or redeemed out in accordance with the procedures (including prorating in the event of the Excess Proceedsoversubscription) set forth in Section 3.3 hereof. The offer price If there remains a balance of Net Available Cash after purchasing all securities tendered, then such balance may be used in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose manner not otherwise prohibited by the Indenture. If the aggregate principal amount purchase price of Notes the securities tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated Net Available Cash allotted to the purchase of Notestheir purchase, the Trustee Company will select the Notes securities to be purchased on a pro rata basis (except that any but in round denominations, which in the case of the Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, 2,000 principal amount or an any greater integral multiple of $1,000 in excess thereof, will . The Company shall not be purchasedrequired to make such an Asset Disposition Offer to purchase Notes (and other First-Priority Stock Secured Debt) pursuant to this Section 4.6 if the Net Available Cash available therefor is less than $100.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of each such an Asset Sale Disposition Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of Excess Proceeds will be reset at zerosuch Asset Disposition Offer. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior Company will comply, to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply extent applicable, with the requirements of Rule 14e-1 under 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent those laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Offerthis Section 4.6. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.3 hereof or this Section 10124.6, the Issuer Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions Section 3.3 hereof or this Section 4.6 by virtue of such compliance.

Additional Assets. Within 365 days after If at any point prior to the receipt of any Net Proceeds from an Asset Sale, the Parent Guarantor (or any Restricted Subsidiary) may apply those Net Proceeds at its option to any combination 12-month anniversary of the following: (I) Closing Date, any assets of the Sellers or their Subsidiaries that are Contributed Property that have not been contributed to prepay, repay, redeem the Company pursuant to the Contribution Agreement or repurchase Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness transferred to the Buyer pursuant to this clause Agreement (Isuch assets are herein referred to as the “Additional Assets”), other than the Parent Guarantor Excluded Assets, are discovered, then the Buyer may deliver notice to SAVVIS, on or before such Restricted Subsidiary will retire 12-month anniversary, requesting delivery of such Indebtedness andAdditional Assets and stating in reasonable detail the grounds for Buyer’s belief that such Additional Assets constitute Contributed Property. If Buyer so notifies SAVVIS, in and SAVVIS agrees that the case of revolving IndebtednessAdditional Assets constitute Contributed Property and should be conveyed to Buyer, will cause the related commitment (if any) to be permanently reduced in an amount equal Sellers shall sell, convey, transfer, assign and deliver to the principal amount so retired; (II) to purchase Notes; (III) purchase or repay on a permanent basis Buyer such Additional Assets, free and clear of all Liens other Indebtedness (excluding (i) any Subordinated Indebtedness than Permitted Liens, and (ii) any Notes or other Indebtedness owed the Sellers shall execute and deliver to the Issuer or an Affiliate of Buyer any further documents reasonably requested by the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (Buyer pursuant to Section 2.5 hereof. If SAVVIS objects to the extent conveyance of such purchases Additional Assets, SAVVIS shall notify Buyer within 10 Business Days after receipt by SAVVIS of such notice from Buyer. If Buyer and SAVVIS are at or above 100% unable, within 10 Business Days after receipt by Buyer of such notice from SAVVIS, to resolve the principal amount thereof) or by making matter after good faith negotiations, the dispute shall be submitted to an offer (arbitration in New York, New York conducted in accordance with the procedures set forth below for an Asset Offer) to all Holders to purchase the Notes at 100% rules of the principal amount thereofAmerican Arbitration Association, plus by an arbitrator appointed by the amount American Arbitration Association reasonably acceptable to Buyer and SAVVIS. The cost of accrued but unpaid interestany arbitration proceeding hereunder shall be borne equally by Buyer and SAVVIS, if any, on and the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect decision of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Businessarbitrator shall be final and binding. Any Net Proceeds from Asset Sales For the avoidance of doubt, the consideration for such Additional Assets that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1012, the Issuer will comply with the applicable securities laws and regulations and will not conveyed shall be deemed to have breached its obligations under be included in the Purchase Price and no additional cash shall be paid for such provisions Additional Assets by virtue of such compliancethe Buyer.

Additional Assets. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Parent Guarantor (or any Restricted Subsidiary) may apply those Net Proceeds at its option to any combination of the following: (I) to prepay, repay, redeem or repurchase Secured Indebtedness(A) First Priority Obligations; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (II)(A), (a) the Parent Guarantor or such Restricted Subsidiary will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; retired and (IIb) if the asset that is subject to purchase Notes; the Asset Sale is subject to a Lien securing First Priority Obligations that ranks pari passu with (IIIand is not subject to a waterfall provision with seniority to) purchase the Indenture Obligations, the Parent Guarantor or repay such Restricted Subsidiary will redeem or repurchase (or offer to redeem or repurchase) the Notes on a permanent pro rata (or greater) basis with any other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes First Priority Obligations being prepaid, repaid, redeemed or other Indebtedness owed to repurchased, at the Issuer or an Affiliate of the Issuer); Company’s option, as provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” Section 1103 herein, through open market purchases (to the extent such purchases are at a purchase price at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaidprepaid or (B) solely to the extent such Net Proceeds are received in respect of properties or assets of a Restricted Subsidiary that is not a Note Party, Indebtedness of a Restricted Subsidiary that is not a Note Party; (IVII) to purchase Notes; (III) to invest in or acquire Additional Assets; or (VIV) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business; provided that (i) to the extent that the assets sold pursuant to this Section constituted Collateral, the Additional Assets received as consideration or that were acquired or invested in and the assets in respect of which such capital expenditures were made shall be owned by Note Parties and (ii) pending the final application of the amount of any such Net Proceeds pursuant to this covenant, the Parent Guarantor, the Issuer and the Restricted Subsidiaries shall not use any such Net Proceeds (x) to repay, repurchase or acquire any long term funded Indebtedness or (y) to make any Restricted Payment. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness constitutes First Priority Obligations containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tenderedother First Priority Obligations) the maximum principal amount of Notes and such other Pari Passu Indebtedness First Priority Obligations (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee Issuer will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriaterequire), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in minimum denominations of $2,000, or an 2,000 and integral multiple multiples of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1012, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.

Additional Assets. Within 365 days after the receipt of any (b) The Net Proceeds from an Asset Sale, the Parent Guarantor Available Cash (or any portion thereof) from Asset Sales may be applied by the Issuer or a Restricted Subsidiary) may apply those Net Proceeds at its option , to any combination of the following: (I) to prepay, repay, redeem or repurchase Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), extent the Parent Guarantor Issuer or such Restricted Subsidiary will retire such Indebtedness and, in elects (or is required by the case terms of revolving Indebtedness, will cause the related commitment (if anyany Debt) to be permanently reduced in an amount equal to the principal amount so retired;to: (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding (i) permanently prepay or permanently Repay any Subordinated Indebtedness and (A) Debt under any Credit Facility or any Senior Debt, (B) Debt which had been secured by the assets sold in the relevant Asset Sale, or (C) Debt of a Restricted Subsidiary that is not a Guarantor; and/or (ii) any Notes or other Indebtedness owed to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary). (c) Any Net Available Cash from an Affiliate of the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (Asset Sale not applied in accordance with Section 4.12(b) within 365 days from the procedures set forth below for date of the receipt of such Net Available Cash shall constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $25.0 million (taking into account income earned on such Excess Proceeds, if any), the Issuer will be required to make an Asset offer to repurchase (the “Prepayment Offer”) the Notes, which offer shall be in the amount of the Allocable Excess Proceeds (rounded to all Holders the nearest $1,000), on a pro rata basis according to principal amount, at a purchase the Notes at price equal to 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to but not including the repurchase date of settlement, (subject to the right of Holders of record on the relevant record date to receive interest due on an the relevant interest payment date date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in the Indenture. To the extent that is on or prior any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders of Notes have been given the opportunity to tender their Notes for repurchase in accordance with the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferIndenture, the Parent Guarantor Issuer or any such Restricted Subsidiary may use those Excess Proceeds such remaining amount for any purpose not otherwise prohibited permitted by the Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at to zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1012, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.

Additional Assets. Within 365 days after the receipt of any (b) The Net Proceeds from an Asset Sale, the Parent Guarantor Available Cash (or any portion thereof) from Asset Sales may be applied by the Issuer or a Restricted Subsidiary) may apply those Net Proceeds at its option , to any combination of the following: (I) to prepay, repay, redeem or repurchase Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (I), extent the Parent Guarantor Issuer or such Restricted Subsidiary will retire such Indebtedness and, in elects (or is required by the case terms of revolving Indebtedness, will cause the related commitment (if anyany Debt) to be permanently reduced in an amount equal to the principal amount so retired;to: (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding (i) permanently prepay or permanently Repay any Subordinated Indebtedness and (A) Debt under any Credit Facility permitted by clause (b) of Section 4.09, (B) Debt which had been secured by the assets sold in the relevant Asset Sale, or (C) Debt of a Restricted Subsidiary; and/or (ii) any Notes or other Indebtedness owed to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Issuer or another Restricted Subsidiary). (c) Any Net Available Cash from an Affiliate of the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (Asset Sale not applied in accordance with Section 4.12(b) within 365 days from the procedures set forth below for date of the receipt of such Net Available Cash shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million (taking into account income earned on such Excess Proceeds, if any), the Issuer will be required to make an Asset offer to repurchase (the “Prepayment Offer”) the Notes, which offer shall be in the amount of the Allocable Excess Proceeds (rounded to all Holders the nearest $1,000), on a pro rata basis according to principal amount, at a purchase the Notes at price equal to 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered) the maximum principal amount of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to but not including the repurchase date of settlement, (subject to the right of Holders of record on the relevant record date to receive interest due on an the relevant interest payment date date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the extent that is on or prior any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders of Notes have been given the opportunity to the date of settlement, and will be payable tender their Notes for repurchase in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offeraccordance with this Indenture, the Parent Guarantor Issuer or any such Restricted Subsidiary may use those Excess Proceeds such remaining amount for any purpose not otherwise prohibited permitted by the this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, or an integral multiple of $1,000 thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at to zero. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1012, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.

Additional Assets. Within 365 days after In the receipt event of any Net Proceeds from an Asset Sale, Disposition that requires the Parent Guarantor purchase of Notes (or any Restricted Subsidiary) may apply those Net Proceeds at its option to any combination of the following: (I) to prepay, repay, redeem or repurchase and other First-Priority Stock Secured Indebtedness; provided, however, that, in connection with any prepayment, repayment, redemption repurchase of Indebtedness pursuant to this clause (IDebt), the Parent Guarantor or such Restricted Subsidiary Company will retire such Indebtedness and, in the case of revolving Indebtedness, will cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so retired; (II) to purchase Notes; (III) purchase or repay on a permanent basis other Indebtedness (excluding (i) any Subordinated Indebtedness and (ii) any Notes or other Indebtedness owed to the Issuer or an Affiliate of the Issuer); provided that the Issuer shall equally and ratably redeem or purchase Notes as described under “—Optional Redemption,” through open market purchases tendered pursuant to an Asset Disposition Offer by the Company for the Notes (to the extent and such purchases are other First-Priority Stock Secured Debt) at or above a purchase price of 100% of the their principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Offer) to all Holders to purchase the Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid; (IV) to invest in or acquire Additional Assets; or (V) to make capital expenditures in respect of the Parent Guarantor’s or its Restricted Subsidiaries’ Permitted Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second preceding paragraph will constitute “Excess Proceeds.” If on the 366th day after an Asset Sale the aggregate amount of Excess Proceeds then exceeds $25.0 million, within five days after such date, the Issuer will make an offer (the “Asset Sale Offer”) to all Holders of Notes, and all holders of other Indebtedness that is Pari Passu Indebtedness containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem on a pro rata basis (based on principal amounts of Notes and Pari Passu Indebtedness (or, in the case of Pari Passu Indebtedness event such other First-Priority Stock Secured Debt was issued with significant original issue discount, based on 100% of the accreted value thereof) tendered) the maximum principal amount ), without premium, plus accrued but unpaid interest and Special Interest, if any (or, in respect of Notes and such other Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expensesFirst-Priority Stock Secured Debt, including premiumssuch other price, incurred in connection therewith) that not to exceed 100%, as may be purchasedprovided for by the terms of such other First-Priority Stock Secured Debt), prepaid or redeemed out in accordance with the procedures (including prorating in the event of the Excess Proceedsoversubscription) set forth in Section 3.3 hereof. The offer price If there remains a balance of Net Available Cash after purchasing all securities tendered, then such balance may be used in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the date of settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Parent Guarantor or any Restricted Subsidiary may use those Excess Proceeds for any purpose manner not otherwise prohibited by the Indenture. If the aggregate principal amount purchase price of Notes the securities tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated Net Available Cash allotted to the purchase of Notestheir purchase, the Trustee Company will select the Notes securities to be purchased on a pro rata basis (except that any but in round denominations, which in the case of the Notes represented by a note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000, 2,000 principal amount or an any greater integral multiple of $1,000 in excess thereof, will . The Company shall not be purchasedrequired to make such an Asset Disposition Offer to purchase Notes (and other First-Priority Stock Secured Debt) pursuant to this Section 4.6 if the Net Available Cash available therefor is less than $100.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of each such an Asset Sale Disposition Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of Excess Proceeds will be reset at zerosuch Asset Disposition Offer. The Parent Guarantor may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior Company will comply, to the expiration of the relevant 365-day period or with respect to Excess Proceeds of $25.0 million or less. The provisions under the Indenture relative to the Parent Guarantor’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be waived or modified with the written consent of a majority in principal amount of the outstanding Notes. The Issuer will comply extent applicable, with the requirements of Rule 14e-1 under of the Exchange Act and any other securities laws and or regulations thereunder to the extent those laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Offerthis Section 4.6. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.3 hereof or this Section 10124.6, the Issuer Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions Section 3.3 hereof or this Section 4.6 by virtue of such compliance.