Common use of Debt Offer Clause in Contracts

Debt Offer. (a) The Company shall, within 10 days of receiving any request by the Purchaser to do so, commence an offer to purchase (accompanied by a related solicitation of consents regarding covenant amendments) all of the Company's outstanding 9 1/2% Senior Discount Notes due 2005 (the "Senior Notes") on such customary terms and conditions as are acceptable to the Purchaser and reasonably satisfactory to the Board of Directors (the "Debt Offer"). The Company shall waive any of the conditions to the Debt Offer and make any other changes in the terms and conditions of the Debt Offer as may be requested by the Purchaser and as are reasonably satisfactory to the Board of Directors, and the Company shall not, without the Purchaser's prior written consent, waive any material condition to the Debt Offer, make any changes to the terms and conditions of the Debt Offer set forth in Schedule 6.9 hereto or make any other material changes in the terms and conditions of the Debt Offer. The Company covenants and agrees that, subject to the terms and conditions of this Agreement, including but not limited to the conditions in the Debt Offer, it will accept for payment and pay for the Senior Notes as soon as reasonably practicable after such conditions to the Debt Offer are satisfied and it is permitted to do so under applicable law, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase with the Purchaser in order to obtain the greatest participation in the Debt Offer. (b) Promptly following the date of this Agreement, the Company and the Purchaser shall prepare an offer to purchase for the Senior Notes and forms of the related letters of transmittal and summary advertisement, as well as all other information and exhibits (collectively, the "Debt Documents"). All mailings of the Debt Documents to the holders of the Senior Notes in connection with the Debt Offer shall be subject to the prior review, comment and approval of the Purchaser (which approval shall not be unreasonably withheld or delayed). The Company will use its reasonable best efforts to cause the Debt Documents to be mailed to the holders of the Senior Notes as promptly as practicable following receipt of the request from the Purchaser under paragraph (a) above to do so. The Company agrees promptly to correct any information in the Debt Documents that shall be or have become false or misleading in any material respect. (c) The Purchaser shall provide to the Company all funds necessary to consummate the Debt Offer on terms reasonably satisfactory to the Board of Directors. No term or condition of such funding shall prevent or restrict the consummation of the Merger. (d) In the event that the Debt Offer is commenced but is terminated without consummation, and such failure to consummate is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all expenses and fees incurred by the Company in connection with the Debt Offer.

Debt Offer. (a) The Company shallPrior to the Closing Date, within 10 days of receiving any request by the Purchaser Merger Sub intends to do so, commence an a tender offer to purchase (accompanied by a related and consent solicitation of consents regarding covenant amendments) for some or all of the Company's outstanding 9 1/2% Senior Discount Notes due 2005 secured, senior and subordinated notes issued by the Company or any of its Subsidiaries (the "Senior “Notes") ”), on such customary terms and conditions as are acceptable to the Purchaser and reasonably satisfactory to the Board of Directors (the "Debt Offer"). The Company shall waive any of the conditions to the Debt Offer and make any other changes in the terms and conditions of the Debt Offer as may be requested by the Purchaser and as are reasonably satisfactory to the Board of Directors, and the Company shall not, without the Purchaser's prior written consent, waive any material condition to the Debt Offer, make any changes to the terms and conditions of the Debt Offer set forth in Schedule 6.9 hereto or make any other material changes in the terms and conditions 5.15 of the Parent Disclosure Letter (the “Debt Offer”). The Company covenants Parent shall prepare all necessary and agrees that, subject to appropriate documentation in connection with the terms and conditions of this AgreementDebt Offers, including but not limited to the conditions in the Debt Offer, it will accept for payment and pay for the Senior Notes as soon as reasonably practicable after such conditions to the Debt Offer are satisfied and it is permitted to do so under applicable law, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase with the Purchaser in order to obtain the greatest participation in the Debt Offer. (b) Promptly following the date of this Agreement, the Company and the Purchaser shall prepare an offer offers to purchase for the Senior Notes and forms of the consent solicitation statements, related letters of transmittal and summary advertisement, as well as all other information and exhibits related documents (collectively, the "“Offer Documents”). The Company agrees to provide, and will cause its Subsidiaries and its and their respective officers and employees to provide, reasonable cooperation in connection with the preparation of the Offer Documents and the consummation of the Debt Documents")Offer, including with respect to the Company’s execution of supplemental indentures reflecting amendments to the indentures applicable to the debt subject to any Debt Offer to the extent approved by any required consents of holders of such debt. All mailings of the Debt Documents to the holders of the Senior Notes in connection with the Debt Offer Offers shall be subject to the prior review, review and comment by the Company and approval Parent and shall be reasonably acceptable to each of them. If at any time prior to the completion of the Purchaser (which approval Debt Offers any information in the Offer Documents should be discovered by the Company or Parent that should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not be unreasonably withheld contain any untrue statement of a material fact or delayed). The Company will use its reasonable best efforts omit to cause the Debt Documents state any material fact required to be mailed stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated by Merger Sub to the holders of the Senior applicable Notes. Notwithstanding anything to the contrary in this Section 5.15, Merger Sub shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable law to the extent such laws are applicable in connection with the Debt Offers. To the extent that the provisions of any applicable law conflict with this Section 5.15, the Merger Sub shall comply with the applicable law and shall not be deemed to have breached its obligations hereunder by such compliance. (b) If requested by Parent in writing, in lieu of Merger Sub commencing or closing a Debt Offer for any series of Notes, the Company shall, to the extent permitted by the indentures under which the Notes as promptly as practicable following receipt were issued, take any actions reasonably requested by Parent to facilitate the redemption, satisfaction and/or discharge or such series of Notes pursuant to such applicable indenture at the Effective Time; provided, that prior to the Company being required to issue any irrevocable notice of redemption with respect to any such series of Notes, which redemption cannot be conditioned upon the occurrence of the request from Closing, Parent shall have, or shall have caused to be, deposited with the Purchaser trustee under paragraph (a) above such applicable indenture sufficient funds to do so. The Company agrees promptly to correct any information in the Debt Documents that shall be or have become false or misleading in any material respecteffect such redemption, satisfaction and discharge. (c) The Purchaser shall provide to the Company all funds necessary to consummate the Debt Offer on terms reasonably satisfactory to the Board of Directors. No term or condition of such funding shall prevent or restrict the consummation of the Merger. All reasonable fees and expenses (d) In the event that the Debt Offer is commenced but is terminated without consummation, and such failure to consummate is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all other fees and expenses and fees consented to by Parent) incurred by the Company in connection with the activities set forth in this Section 5.15 shall be paid by Parent. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective officers, directors and other representatives for and against any and all losses or damages suffered or incurred by them in connection with the Debt OfferOffer and any information contained in the Offer Documents in connection therewith, except (i) with respect to information supplied by the Company, its Subsidiaries and representatives in writing specifically for inclusion or incorporation by reference therein and (ii) to the extent such losses and damages arise from the willful misconduct of the Company or any of its or its Subsidiaries’ officers, directors, employees or representatives.

Debt Offer. (a) The Company shallshall commence, within 10 on any date designated by Purchaser after 14 days of receiving any request by following the Purchaser date hereof and on at least five Business Days prior written notice to do sothe Company, commence an offer to purchase (accompanied by a related solicitation of consents regarding covenant amendments) all of the outstanding aggregate principal amount of the Company's outstanding ’s 9 1/25/8 % Senior Discount Subordinated Notes due 2005 2012 (the "Senior “Notes"”) on the terms and conditions set forth in Section 4.05(a) of the Company Disclosure Schedule (or as otherwise may be agreed between in writing by the Company and Purchaser) and such other customary terms and conditions as are reasonably acceptable to the Purchaser and reasonably satisfactory the Company (including the related Consent Solicitation (as defined below), the “Debt Offer”); provided that (A) this Agreement shall not have been terminated in accordance with Section 8.01, and (B) at the time of such commencement, Purchaser shall have otherwise performed or complied in all material respects with all of its agreements and covenants required by this Agreement to be performed on or prior to the Board of Directors (the "Debt Offer"). The Company shall waive any of the conditions to time that the Debt Offer and is to be commenced. Following the commencement of the Debt Offer, the Company shall make any other such changes in to the terms and conditions of the Debt Offer as may be reasonably requested in writing by Purchaser; provided that the Company shall not be required to (i) increase the price per Note payable unless advised in writing by the Purchaser and as are reasonably satisfactory dealer manager of the Debt Offer that such increase is advisable to successfully complete the Debt Offer, (ii) remove the condition that the Merger shall have been consummated or the condition that there shall be no order or injunction prohibiting consummation of the Debt Offer or (iii) make any binding commitment by the Company or any Company Subsidiary unless such commitment is either conditioned on the Closing or terminates without liability to the Board Company or any Company Subsidiary. Following the commencement of Directorsthe Debt Offer, and the Company shall not, without the written consent of Purchaser's prior written consent, waive any material condition to the Debt Offer, Offer or make any changes to the terms and conditions of the Debt Offer set forth Offer, in Schedule 6.9 hereto either case, that would have a material and adverse effect on Purchaser or make any other material changes the Surviving Corporation or the Financing except as otherwise agreed in writing between Purchaser and the terms and conditions Company. If Purchaser advises the Company in writing that, in its reasonable judgment based on the advice of the dealer manager of the Debt Offer, there is a significant possibility that the Requisite Consent will not be obtained and preparations should be made to defease the Notes, the Company shall use commercially reasonable efforts to make such preparations, and if the Requisite Consent is not timely received, the Company shall defease the Notes in connection with and at the time of the Merger; provided, however, that the Company shall not be required to defease the Notes or provide any irrevocable notice regarding such defeasance unless (i) such action is taken simultaneously with the Merger being consummated and (ii) Purchaser shall have deposited, or caused to be deposited, the amount of funds necessary to effect such defeasance as provided and calculated in accordance with the terms of the Indenture. If there is more than one dealer manager for the Debt Offer, the term dealer manager as used in this Section 4.06(a) shall refer to the lead dealer manager of the Debt Offer. (b) As part of the Debt Offer, the Company shall solicit the consent (the “Consent Solicitation”) of the holders of the Notes to amendments to the Indenture as set forth in Section 4.05(b) of the Company Disclosure Schedule (the “Amendments”). The Company covenants shall use its commercially reasonable efforts to obtain, as soon as practicable after the date of the commencement of the Debt Offer, the requisite consent of holders of the Notes as set forth in Section 4.05(b) of the Company Disclosure Schedule (the “Requisite Consent”) to authorize the Amendments. Promptly upon receipt of the Requisite Consent, the Company shall, and agrees thatshall use its commercially reasonable efforts to cause the trustee to, execute a supplemental indenture incorporating and giving effect to the Amendments, which shall become operative immediately prior to the Effective Time, subject to the terms and conditions of this Agreement, Agreement (including but not limited to the conditions in to the Debt Offer). Concurrent with the Effective Time, it will Purchaser shall cause the Surviving Corporation to accept for payment and thereafter promptly pay for the Senior Notes as soon as reasonably practicable after such conditions that have been properly tendered and not withdrawn pursuant to the Debt Offer are satisfied and it is permitted to do so under applicable law, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase in accordance with the Purchaser in order to obtain the greatest participation in the Debt Offer. (bc) Promptly following after the date of this Agreement, the Company and the Purchaser shall prepare an all necessary and appropriate documentation in connection with the Debt Offer, including the offer to purchase for the Senior Notes and forms of the purchase, related letters letter of transmittal and summary advertisement, as well as all other information and exhibits related documents (collectively, the "Debt “Offer Documents"”). Purchaser and the Company shall cooperate with each other in the preparation of the Offer Documents. All mailings of the Debt Documents to the holders of the Senior Notes in connection with the Debt Offer shall be subject to the prior review, review and comment and approval of the Company and Purchaser (and shall be reasonably acceptable to each of them. If at any time prior to the completion of the Debt Offer any information in the Offer Documents should be discovered by the Company or Purchaser which approval should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not be unreasonably withheld contain any untrue statement of a material fact or delayed). The Company will use its reasonable best efforts omit to cause the Debt Documents state any material fact required to be mailed stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated to the holders of the Senior Notes as promptly as practicable following receipt of the request from the Purchaser under paragraph (a) above to do soNotes. The Company agrees promptly to correct any information in the Debt Documents that shall be or have become false or misleading in any material respect. (c) The Purchaser shall provide Notwithstanding anything to the contrary in this Section 4.06, the Company all funds necessary to consummate shall comply with the Debt Offer on terms reasonably satisfactory requirements of Rule 14e-1 under the Exchange Act and any other applicable Law to the Board of Directors. No term or condition of extent such funding shall prevent or restrict the consummation of the Merger. (d) In the event that the Debt Offer is commenced but is terminated without consummation, and such failure to consummate is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all expenses and fees incurred by the Company Laws are applicable in connection with the Debt Offer. To the extent that the provisions of any applicable Law conflict with this Section 4.06, the Company shall comply with the applicable Law and shall not be deemed to have breached its obligations hereunder by such compliance.

Debt Offer. (a) The Company shallshall use its reasonable best efforts to commence, within 10 on the date 14 days prior to the estimated date of receiving mailing the Proxy Statement or on any request other date designated by Parent on at least five days notice to the Purchaser to do soCompany, commence an offer to purchase (accompanied by a purchase, and related consent solicitation with respect to, all of consents regarding covenant amendments) all the outstanding aggregate principal amount of the Company's outstanding 9 1/28 3/8 % Senior Discount Subordinated Notes due 2005 2012 (the "Senior NotesNOTES") on the terms and conditions set forth in Section 2.06(a) of the Company Disclosure Schedule (or as may be agreed between the Company and Parent) and such other customary terms and conditions as are reasonably acceptable to Parent and the Purchaser Company (including the related consent solicitation, the "DEBT OFFER"); provided that (A) this Agreement shall not have been terminated in accordance with Section 8.01, (B) the Company shall have received from Parent the completed Offer Documents (as defined below), which shall be in form and substance reasonably satisfactory to the Board Company, and (C) at the time of Directors (such commencement, Parent shall have otherwise performed or complied with all of its agreements and covenants required by this Agreement to be performed on or prior to the "time that the Debt Offer")Offer is to be commenced. The Company shall waive any of the conditions to the Debt Offer (other than that the Merger shall have been consummated and make any other changes in the terms and conditions that there shall be no order or injunction prohibiting consummation of the Debt Offer Offer) as may be reasonably requested by the Purchaser Parent and as are reasonably satisfactory to the Board of Directors, and the Company shall not, without the Purchaser's prior written consentconsent of Parent, waive any material condition to the Debt Offer, Offer or make any changes to the terms and conditions of the Debt Offer set forth in Schedule 6.9 hereto or other than as agreed between Parent and the Company. Notwithstanding the immediately preceding sentence, the Company need not make any other material changes in change to the terms and conditions of the Debt Offer. Offer requested by Parent that decreases the price per Note payable in the Debt Offer or related consent solicitation or imposes conditions to the Debt Offer or related consent solicitation in addition to those set forth in Section 2.06(a) of the Company Disclosure Schedule that are materially adverse to holders of the Notes, unless such change is approved by the Company in writing. (b) The Company covenants and agrees that, immediately following the consent expiration date, assuming the requisite consents are received, it shall execute a supplemental indenture to the indenture governing the Notes, which supplemental indenture shall implement the amendments set forth in the Offer Documents and shall become operative immediately prior to the Effective Time, subject to the terms and conditions of this Agreement, Agreement (including but not limited to the conditions in to the Debt Offer). Concurrent with the Effective Time, it will Parent shall cause the Surviving Company to accept for payment and thereafter promptly pay for the Senior Notes as soon as reasonably practicable after such conditions that have been properly tendered and not withdrawn pursuant to the Debt Offer are satisfied and it is permitted to do so under applicable law, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase in accordance with the Purchaser in order to obtain the greatest participation in the Debt Offer. (bc) Promptly following after the date of this Agreement, the Company and the Purchaser Parent shall prepare an all necessary and appropriate documentation in connection with the Debt Offer, including the offer to purchase for the Senior Notes and forms of the purchase, related letters letter of transmittal and summary advertisement, as well as all other information and exhibits related documents (collectively, the "Debt DocumentsOFFER DOCUMENTS"). Parent and the Company shall cooperate with each other in the preparation of the Offer Documents. All mailings of the Debt Documents to the holders of the Senior Notes in connection with the Debt Offer shall be subject to the prior review, review and comment and approval by of the Purchaser (Company and Parent and shall be reasonably acceptable to each of them. If at any time prior to the completion of the Debt Offer any information in the Offer Documents should be discovered by the Company or Parent which approval should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not be unreasonably withheld contain any untrue statement of a material fact or delayed). The Company will use its reasonable best efforts omit to cause the Debt Documents state any material fact required to be mailed stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated to the holders of the Senior Notes as promptly as practicable following receipt of the request from the Purchaser under paragraph (a) above to do soNotes. The Company agrees promptly to correct any information in the Debt Documents that shall be or have become false or misleading in any material respect. (c) The Purchaser shall provide Notwithstanding anything to the contrary in this Section 2.06, the Company all funds necessary to consummate shall comply with the Debt Offer on terms reasonably satisfactory requirements of Rule 14e-1 under the Exchange Act and any other applicable Law to the Board of Directors. No term or condition of extent such funding shall prevent or restrict the consummation of the Merger. (d) In the event that the Debt Offer is commenced but is terminated without consummation, and such failure to consummate is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all expenses and fees incurred by the Company Laws are applicable in connection with the Debt Offer. To the extent that the provisions of any applicable Law conflict with this Section 2.06, the Company shall comply with the applicable Law and shall not be deemed to have breached its obligations hereunder by such compliance. (d) Parent shall pay the reasonable fees and expenses of any dealer manager, information agent, depositary or other agent retained in connection with the Debt Offer, and Parent further agrees to reimburse the Company for all of its reasonable out-of-pocket costs in connection with the Debt Offer promptly following incurrence and delivery of reasonable documentation of such costs. Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, the Subsidiaries, their respective officers and directors and each person, if any, who controls the Company within the meaning of Section 20 of the Exchange Act for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the Debt Offer and the Offer Documents; PROVIDED, HOWEVER, that neither Parent nor Merger Sub shall have any obligation to indemnify and hold harmless any such party or person to the extent that any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred arises from disclosure regarding the Company that is determined to have contained a material misstatement or omission.

Debt Offer. (a) The Company shallshall commence, within 10 days on or prior to the date of receiving filing the Information Statement in preliminary form with the Securities and Exchange Commission (the "SEC") or on any request by other date agreed to in writing between the Purchaser to do soCompany and Parent, commence an offer to purchase (accompanied by a purchase, and related consent solicitation of consents regarding covenant amendments) to eliminate certain covenants with respect to, all of the Company's outstanding 9 1/2aggregate principal amount of 9.000% Senior Discount Secured Notes due 2005 2008 of Barney's, Inc. (the "Senior Notes") on the terms and conditions set forth in Section 2.04(a) of the Company Disclosure Letter (or as may be agreed in writing between the Company and Parent) and such other customary terms and conditions as are acceptable to may be agreed between Parent and the Purchaser and reasonably satisfactory to Company (together with the Board of Directors (related consent solicitation, the "Debt Offer"). The Company (i) shall waive any of the conditions to the Debt Offer (other than that the Merger shall have been consummated and make any other changes in that there shall be no Restraint that has the terms and conditions effect of preventing the consummation of the Debt Offer Offer) as may be reasonably requested by the Purchaser Parent and as are reasonably satisfactory to the Board of Directors, and the Company (ii) shall not, without the Purchaser's prior written consentconsent of Parent, waive any material condition to the Debt Offer, Offer or make any changes to the terms and conditions of the Debt Offer Offer. Notwithstanding the immediately preceding sentence, and subject to the terms and conditions set forth in Schedule 6.9 hereto or make any other material changes in Section 2.04(a) of the Company Disclosure Letter, the Company shall not be required to amend the terms and conditions of the Debt Offer. Offer pursuant to instructions from Parent if such amendment would decrease the price per Senior Note payable in the Debt Offer or impose conditions to the Debt Offer in addition to those set forth in Section 2.04(a) of the Company Disclosure Letter that are materially adverse to holders of the Senior Notes. (b) The Company covenants and agrees that, immediately following the Consent Payment Deadline (as defined in Section 2.04(a) of the Company Disclosure Letter), assuming the requisite consents are received, it shall, and shall cause its Subsidiaries (as applicable) and the Senior Note Trustee or the Collateral Agent under the security documents relating to the Senior Notes (the "Collateral Agent"), as applicable, to, execute (i) a supplemental indenture to the Indenture, dated April 1, 2003 (the "Indenture"), among Barneys New York, Inc., certain of its Subsidiaries and Wilmington Trust Company, as trustee (the "Senior Note Trustee") and (ii) each amendment to the security documents relating to the Senior Notes, which supplemental indenture and amendments to the security documents shall implement the proposed amendments set forth in the Debt Offer Documents and shall become operative substantially concurrently with the Effective Time, subject to the terms and conditions of this Agreement, Agreement (including but not limited to the conditions in to the Debt Offer). Subject to Section 2.04(a) of the Company Disclosure Letter, it will substantially concurrently with the Effective Time, Parent shall cause the Surviving Corporation to accept for payment and and, as promptly as practicable thereafter, pay for the Senior Notes as soon as reasonably practicable after such conditions that have been properly tendered and not withdrawn pursuant to the Debt Offer are satisfied and it is permitted to do so under applicable lawin accordance with the Debt Offer Documents. (c) As promptly as practicable after the date hereof, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase prepare all necessary and appropriate documentation in connection with the Purchaser in order to obtain the greatest participation in the Debt Offer. (b) Promptly following , including the date of this Agreement, the Company and the Purchaser shall prepare an offer to purchase for the Senior Notes and forms of the purchase, related letters letter of transmittal and summary advertisementother related documents, as well as all other information including a letter to the Securities and exhibits Exchange Commission in a form customary for fixed price spread tender offers (collectively, the "Debt Offer Documents"), forms of which shall be provided by Parent to the Company as promptly as practicable after the date hereof. Subject to the preceding sentence, Parent and the Company shall cooperate with each other in the preparation of the Debt Offer Documents. All mailings of the Debt Documents to the holders of the Senior Notes in connection with the Debt Offer shall be subject to the prior reviewreview and comment by Parent, comment and approval no Debt Offer Document shall be mailed or otherwise distributed to holders of the Purchaser (which approval shall Senior Notes without the written consent of Parent, such consent not to be unreasonably withheld or delayed). The Company will use its reasonable best efforts If at any time prior to cause the completion of the Debt Offer any information in or concerning the Debt Offer Documents is discovered by the Company or Parent, which information should be included in an amendment or supplement to the Debt Offer Documents to prevent the Debt Offer Documents from containing any untrue statement of a material fact or from omitting to state any material fact required to be mailed stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated to the holders of the Senior Notes as promptly as practicable following receipt of the request from the Purchaser under paragraph (a) above to do so. The Company agrees promptly to correct any information in the Debt Documents that shall be or have become false or misleading in any material respect. (c) The Purchaser shall provide to the Company all funds necessary to consummate the Debt Offer on terms reasonably satisfactory to the Board of Directors. No term or condition of such funding shall prevent or restrict the consummation of the MergerNotes. (d) In Notwithstanding anything to the event that contrary in this Section 2.04, the Debt Offer is commenced but is terminated without consummationCompany shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"), and any other Law to the extent such failure to consummate Law is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all expenses and fees incurred by the Company applicable in connection with the Debt Offer. To the extent that the provisions of any applicable Law conflict with this Section 2.04, the Company shall comply with such applicable Law and shall not be deemed to have breached its obligations hereunder by such compliance.

Debt Offer. At such time as requested by Parent, the Company shall (ai) The Company shall, within 10 days of receiving any request by commence a cash tender offer (the Purchaser to do so, commence an offer "Debt Offer") to purchase (accompanied by a related solicitation of consents regarding covenant amendments) any and all of the Company's outstanding 9 1/28 3/8% Senior Discount Notes of the Company due 2005 2012 (the "Senior Notes") on such customary and (ii) solicit the consent of the holders of the Senior Notes regarding certain amendments (the "Indenture Amendments") to the covenants contained in the Indenture, dated as of March 8, 2004, by and between the Company and the Bank of New York, as trustee. Such offer to purchase and consent solicitation shall be made in accordance with the written terms and conditions as are acceptable provided, from time to time, by Parent to the Purchaser Company and reasonably satisfactory to Applicable Law; provided that in any event, the Board of Directors (the "Debt Offer"). The Company shall waive any of the conditions to the Debt Offer and make any other changes in parties agree that the terms and conditions of the Debt Offer as may and Indenture Amendments shall provide that the closing and effectiveness, respectively, thereof shall be requested by contingent upon the Purchaser and as are reasonably satisfactory to Closing of the Board of Directors, and the Merger. The Company shall not, without the PurchaserParent's and Merger Sub's prior written consent, waive any material condition to the Debt Offer, make any changes to Offer described in the written terms and conditions of the Debt Offer set forth in Schedule 6.9 hereto or make any other material changes in the terms and conditions of the Debt Offer. The Company covenants and agrees that, subject provided by Parent to the terms and conditions Company from time to time. In the event that this Agreement is terminated pursuant to Section 10.1(a), 10.1(b) (other than as a result of a breach of this AgreementAgreement by the Company), including but not limited to Section 10.1(e) or Section 10.1(f), Parent shall reimburse the conditions in Company for all reasonable out-of-pocket fees and expenses incurred by the Debt Offer, it will accept for payment and pay for the Senior Notes as soon as reasonably practicable after such conditions Company that are directly related to the Debt Offer are satisfied (including, any reasonable and it is permitted to do so under applicable law, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase with the Purchaser in order to obtain the greatest participation in the Debt Offer. (b) Promptly following the date of this Agreement, the Company customary fees and the Purchaser shall prepare an offer to purchase for the Senior Notes and forms of the related letters of transmittal and summary advertisement, as well as all other information and exhibits (collectively, the "Debt Documents"). All mailings of the Debt Documents to the holders of the Senior Notes in connection with the Debt Offer shall be subject to the prior review, comment and approval of the Purchaser (which approval shall not be unreasonably withheld or delayed). The Company will use its reasonable best efforts to cause the Debt Documents to be mailed to the holders of the Senior Notes as promptly as practicable following receipt of the request from the Purchaser under paragraph (a) above to do so. The Company agrees promptly to correct any information in the Debt Documents that shall be or have become false or misleading in any material respect. (c) The Purchaser shall provide to the Company all funds necessary to consummate the Debt Offer on terms reasonably satisfactory to the Board of Directors. No term or condition of such funding shall prevent or restrict the consummation of the Merger. (d) In the event that the Debt Offer is commenced but is terminated without consummation, and such failure to consummate is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all expenses and fees incurred paid by the Company to any dealer manager, information agent, depository or other agent retained in connection with the Debt Offer.) (the "Debt Tender Fees"); provided, however, (A) the Company shall be required to return to Parent any Debt Tender Fees previously paid by Parent to the Company if the

Debt Offer. (a) The Company shallPrior to the Closing Date, within 10 days of receiving any request by the Purchaser Merger Sub intends to do so, commence an a tender offer to purchase (accompanied by a related and consent solicitation of consents regarding covenant amendments) for some or all of the Company's outstanding 9 1/2% Senior Discount Notes due 2005 secured, senior and subordinated notes issued by the Company or any of its Subsidiaries (the "Senior “Notes") ”), on such customary terms and conditions as are acceptable to the Purchaser and reasonably satisfactory to the Board of Directors (the "Debt Offer"). The Company shall waive any of the conditions to the Debt Offer and make any other changes in the terms and conditions of the Debt Offer as may be requested by the Purchaser and as are reasonably satisfactory to the Board of Directors, and the Company shall not, without the Purchaser's prior written consent, waive any material condition to the Debt Offer, make any changes to the terms and conditions of the Debt Offer set forth in Schedule 6.9 hereto or make any other material changes in the terms and conditions 5.15 of the Parent Disclosure Letter (the “Debt Offer”). The Company covenants Parent shall prepare all necessary and agrees that, subject to appropriate documentation in connection with the terms and conditions of this AgreementDebt Offers, including but not limited to the conditions in the Debt Offer, it will accept for payment and pay for the Senior Notes as soon as reasonably practicable after such conditions to the Debt Offer are satisfied and it is permitted to do so under applicable law, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase with the Purchaser in order to obtain the greatest participation in the Debt Offer. (b) Promptly following the date of this Agreement, the Company and the Purchaser shall prepare an offer offers to purchase for the Senior Notes and forms of the consent solicitation statements, related letters of transmittal and summary advertisement, as well as all other information and exhibits related documents (collectively, the "“Offer Documents”). The Company agrees to provide, and will cause its Subsidiaries and its and their respective officers and employees to provide, reasonable cooperation in connection with the preparation of the Offer Documents and the consummation of the Debt Documents")Offer, including with respect to the Company’s execution of supplemental indentures reflecting amendments to the indentures applicable to the debt subject to any Debt Offer to the extent approved by any required consents of holders of such debt. All mailings of the Debt Documents to the holders of the Senior Notes in connection with the Debt Offer Offers shall be subject to the prior review, review and comment by the Company and approval Parent and shall be reasonably acceptable to each of them. If at any time prior to the completion of the Purchaser (which approval Debt Offers any information in the Offer Documents should be discovered by the Company or Parent that should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not be unreasonably withheld contain any untrue statement of a material fact or delayed). The Company will use its reasonable best efforts omit to cause the Debt Documents state any material fact required to be mailed stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated by Merger Sub to the holders of the Senior applicable Notes. Notwithstanding anything to the contrary in this Section 5.15, Merger Sub shall comply with the 52 requirements of Rule 14e-1 under the Exchange Act and any other applicable law to the extent such laws are applicable in connection with the Debt Offers. To the extent that the provisions of any applicable law conflict with this Section 5.15, the Merger Sub shall comply with the applicable law and shall not be deemed to have breached its obligations hereunder by such compliance. (b) If requested by Parent in writing, in lieu of Merger Sub commencing or closing a Debt Offer for any series of Notes, the Company shall, to the extent permitted by the indentures under which the Notes as promptly as practicable following receipt were issued, take any actions reasonably requested by Parent to facilitate the redemption, satisfaction and/or discharge or such series of Notes pursuant to such applicable indenture at the Effective Time; provided, that prior to the Company being required to issue any irrevocable notice of redemption with respect to any such series of Notes, which redemption cannot be conditioned upon the occurrence of the request from Closing, Parent shall have, or shall have caused to be, deposited with the Purchaser trustee under paragraph (a) above such applicable indenture sufficient funds to do so. The Company agrees promptly to correct any information in the Debt Documents that shall be or have become false or misleading in any material respecteffect such redemption, satisfaction and discharge. (c) The Purchaser shall provide to the Company all funds necessary to consummate the Debt Offer on terms reasonably satisfactory to the Board of Directors. No term or condition of such funding shall prevent or restrict the consummation of the Merger. All reasonable fees and expenses (d) In the event that the Debt Offer is commenced but is terminated without consummation, and such failure to consummate is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all other fees and expenses and fees consented to by Parent) incurred by the Company in connection with the activities set forth in this Section 5.15 shall be paid by Parent. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective officers, directors and other representatives for and against any and all losses or damages suffered or incurred by them in connection with the Debt OfferOffer and any information contained in the Offer Documents in connection therewith, except (i) with respect to information supplied by the Company, its Subsidiaries and representatives in writing specifically for inclusion or incorporation by reference therein and (ii) to the extent such losses and damages arise from the willful misconduct of the Company or any of its or its Subsidiaries’ officers, directors, employees or representatives.

Debt Offer. (a) The At such time as requested by Holding and Acquisition Sub (provided that Holding and Acquisition Sub shall coordinate with the Company shallregarding such timing), within 10 days of receiving any request by the Purchaser to do so, Company shall commence an offer to purchase (purchase, accompanied by a related solicitation solicitations of consents consent regarding covenant amendments) all amendments to the Indenture to permit the consummation of the Merger and the other transactions contemplated hereby without breach or default of the Indenture or the terms of the Senior Subordinated Notes (as defined below), the Company's ’s outstanding 9 1/2% Senior Discount Notes 10 ¼% senior subordinated notes due 2005 2007 (the "“Senior Subordinated Notes") ”), on such customary terms and conditions as are in accordance with the Indenture, applicable law and otherwise reasonably acceptable to Holding and Acquisition Sub, in the Purchaser and reasonably satisfactory to exercise of their reasonable judgment; provided that the Board price so offered for the purchase of Directors the Senior Subordinated Notes (the "“Tender Price”) shall be no less than the redemption price for such Senior Subordinated Notes in effect on the date hereof as provided in the Indenture (the “Debt Offer"”). The Company shall waive any of the conditions to the Debt Offer and make any other changes in the terms and conditions of the Debt Offer as may be reasonably requested by the Purchaser Holding and as are reasonably satisfactory to the Board of DirectorsAcquisition Sub, and the Company shall not, without the Purchaser's Holding’s and Acquisition Sub’s prior written consent, which shall not be unreasonably withheld or delayed, waive any material condition to the Debt Offer, or make any changes to the terms and conditions of the Debt Offer set forth in Schedule 6.9 hereto or make any other material changes in Offer. Notwithstanding the terms and conditions of foregoing, Holding agrees that without the Company’s prior consent the transactions contemplated by the Debt Offer shall not be consummated, and in connection therewith no amounts shall be payable by the Company to the holders of Senior Subordinated Notes in connection with such Debt Offer, pursuant to any offer to purchase or consent solicitation or otherwise (unless Holding provides an undertaking to reimburse the Company for any amounts so paid), unless the Merger has been consummated. The In connection therewith, the Company covenants and agrees that, subject to the terms and conditions of this Agreement, including but not limited to the terms and conditions in to the Debt Offer, it will accept for payment payment, and pay for for, the Senior Subordinated Notes as soon as reasonably practicable after such conditions to contemporaneously with, and contingent upon, the Debt Offer are satisfied and it is permitted to do so under applicable law, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase with the Purchaser in order to obtain the greatest participation in the Debt OfferEffective Time. (b) Promptly following the date of this Agreement, the Company shall prepare, subject to reasonable advice and the Purchaser shall prepare comments of Holding and Acquisition Sub, an offer to purchase for the Senior Subordinated Notes and forms of the related letters of transmittal and summary advertisement, as well as all other information and exhibits (collectively, the "Debt “Offer Documents"”). In the event that this Agreement is terminated, the Company will have the right to amend the Offer Documents without Holding’s consent. All mailings of the Debt Documents to the holders of the Senior Subordinated Notes in connection with the Debt Offer shall be subject to the prior review, comment and approval of the Purchaser (which Holding and Acquisition Sub, such review, comment and approval shall not to be unreasonably withheld or delayed). The Company will use its reasonable best efforts to cause the Debt Offer Documents to be mailed to the holders of the Senior Subordinated Notes as promptly as practicable following receipt of the request from the Purchaser Holding and Acquisition Sub under paragraph (a) above to do so. The Company agrees promptly to correct any information in the Debt Documents that shall be or have become false or misleading in any material respect. (c) The Purchaser shall provide If at any time prior to the Effective Time any information relating to the Company all funds necessary to consummate or the Debt Offer on terms reasonably satisfactory transactions contemplated hereby should be discovered by the Company, Holding or Acquisition Sub, which should be set forth in an amendment or supplement to the Board documents mailed to holders of Directors. No term or condition of such funding shall prevent or restrict the consummation of the Merger. (d) In the event that the Debt Offer is commenced but is terminated without consummation, and such failure to consummate is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all expenses and fees incurred by the Company Senior Subordinated Notes in connection with the Debt OfferOffer so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall promptly be prepared by the Company and, if required, filed by the Company with the SEC or disseminated by the Company to the holders of the Senior Subordinated Notes.

Debt Offer. (a) The Provided that this Agreement shall not have been terminated, the Company shall, within 10 shall promptly (but in no event later than 5 business days of receiving any request by after the Purchaser to do sodate hereof), commence an offer to purchase (purchase, accompanied by a related consent solicitation of consents regarding covenant amendments) , all of the Company's outstanding 9 1/21/4% Senior Discount Subordinated Notes due 2005 Due 2007 (the "Senior Subordinated Notes") ), on the terms set forth in Section 6.10 of the Company Disclosure Letter and such other customary terms and conditions as are reasonably acceptable to the Purchaser and reasonably satisfactory Merger Sub (as amended from time to the Board of Directors (time, the "Debt Offer"). The Company shall waive any of the conditions to the Debt Offer and make any other changes in the terms and conditions of the Debt Offer as may be reasonably requested by the Purchaser and as are reasonably satisfactory to the Board of Directors, and the Merger Sub. The Company shall not, without the PurchaserMerger Sub's prior written consent, waive any material condition to the Debt Offer, make any changes to the terms and conditions of the Debt Offer set forth in Schedule 6.9 hereto Section 6.10 of the Company Disclosure Letter or make any other material changes in the terms and conditions of the Debt Offer. The Company covenants and agrees that, subject to the terms and conditions of this Agreement, including but not limited to the conditions in the Debt Offer, it will accept for payment and pay for the Senior Subordinated Notes as soon as reasonably practicable after such conditions to the Debt Offer are satisfied and it is permitted to do so under applicable law, provided that the Company shall use reasonable best efforts to coordinate the timing of any such purchase with the Purchaser Merger Sub in order to obtain the greatest participation in the Debt Offer. (b) Promptly following the date of this Agreement, Merger Sub shall prepare, subject to comments of, and reasonable approval by, the Company and the Purchaser shall prepare its counsel, an offer to purchase for and related documents necessary to consummate the repurchase of the Senior Subordinated Notes and forms of the related letters of transmittal and summary advertisement, consent solicitation (as well as all other information and exhibits (collectivelyamended from time to time, the "Debt Offer Documents"). All mailings of the Debt Documents to the holders of the Senior Subordinated Notes in connection with the Debt Offer shall be subject to the prior review, comment and approval review of the Purchaser (which approval shall not be unreasonably withheld or delayed)Merger Sub. The Company will use its reasonable best efforts to cause the Debt Offer Documents to be mailed to the holders of the Senior Subordinated Notes as promptly as practicable following receipt of the a request from the Purchaser under paragraph (a) above Merger Sub to do so. The Company agrees promptly to correct any information in the Debt Offer Documents that shall be or have become false or misleading in any material respect. (c) The Purchaser shall provide to the Company all funds necessary obligations of Parent and Merger Sub to consummate the Debt Offer on terms reasonably satisfactory and to effect the Merger shall not be subject to the Board successful completion of Directors. No term or condition of such funding shall prevent or restrict the consummation of the Merger. (d) In the event that the Debt Offer is commenced but is terminated without consummation, and such failure to consummate is not the result of the Company's breach, the Purchaser will reimburse the Company for any and all expenses and fees incurred by the Company in connection with the Debt Offer.