Common use of Disposition of Proceeds of Asset Sales Clause in Contracts

Disposition of Proceeds of Asset Sales. The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Sale unless (a) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of and (b) at least 85% of such consideration consists of (A) cash or Cash Equivalents, (B) properties and capital assets to be used in a Permitted Business and/or (C) Equity Interests in one or more Persons that are primarily engaged in a Permitted Business so long as upon the consummation of any sale in accordance with this clause (C), such Person becomes a Wholly Owned Restricted Subsidiary; provided, however, that, in the case of sales pursuant to clauses (B) and (C) not involving solely an exchange of a Permitted Business and cash (if any), if the Fair Market Value of the assets sold or otherwise disposed of in a single transaction or series of transactions exceeds $5.0 million, the Company shall be required to obtain the written opinion from an Independent Financial Advisor 108 (and file such opinion with the Trustee) stating that the terms of such Asset Sale are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Asset Sale. The amount of any (i) Indebtedness (other than any Subordinated Indebtedness) of the Company or any Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and the Restricted Subsidiaries are fully released shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries and (ii) notes or other similar obligations received by the Company or the Restricted Subsidiaries from such transferee that are immediately converted, sold or exchanged (or are converted, sold or exchanged within thirty days of the related Asset Sale) by the Company or the Restricted Subsidiaries into cash shall be deemed to be cash, in an amount equal to the net cash proceeds realized upon such conversion, sale or exchange for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries. Notwithstanding the foregoing, during the term of the Securities, the Company and the Restricted Subsidiaries may engage in Asset Sales involving $10.0 million or more without complying with clause (b) of the first sentence of this paragraph. Notwithstanding the foregoing, the Company or such Restricted Subsidiary, as the case may be, may (i) apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof to repay Senior Indebtedness and permanently reduce any related commitment, (ii) apply such Net Cash Proceeds to repay Specified Indebtedness and, by written notice to the Trustee and the holders (the "Permitted Debt Reduction"), elect to permanently reduce the amount of Specified Indebtedness that may be incurred as Permitted Indebtedness under Section 10.11 by an amount equal to the amount of such Net Cash Proceeds, (iii) apply such Net Proceeds to acquire, construct or improve properties and capital assets to be used on a Permitted Business within 365 days after the receipt thereof or (iv) any combination of the foregoing. 109 To the extent that all or part of the Net Cash Proceeds of any Asset Sale are not applied within 365 days of such Asset Sale as described in clause (i), (ii) or (iii) of the immediately preceding paragraph (such Net Cash Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall, within 20 days after such 365th day, make an offer to purchase ("Offer to Purchase") all outstanding Securities up to a maximum principal amount of Securities equal to the Note Pro Rata Share, at a purchase price in cash equal to 100% of the principal amount of Securities, plus accrued and unpaid interest (including Additional Interest, if any) thereon, if any, to the Purchase Date; provided, however, that the Offer to Purchase may be deferred until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of $10.0 million, at which time the entire amount of such Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this paragraph. In the event that the terms of any Other Pari Passu Indebtedness requires that an offer to purchase be made to repurchase such Indebtedness upon the consummation of any Asset Sale (the "Other Indebtedness"), the Company may use the Unutilized Net Cash Proceeds otherwise required to be used to make an Offer to Purchase or to retire such Other Pari Passu Indebtedness and to make an Offer to Purchase so long as the amount of such Unutilized Net Cash Proceeds available to be applied to purchase the Securities is not less than the Note Pro Rata Share. With respect to any Unutilized Net Cash Proceeds, the Company shall make the Offer to Purchase in respect thereof at the same time as the analogous offer to purchase is made under any Other Indebtedness and the Purchase Date in respect thereof shall be the same under this Indenture as the Purchase Date in respect thereof pursuant to any Other Indebtedness. With respect to any Offer to Purchase effected pursuant to this covenant, to the extent that the principal amount of the Securities tendered pursuant to such Offer to Purchase exceeds the Note Pro Rata Share to be applied to the purchase thereof, such Securities shall be purchased pro rata based on the principal amount of such Securities tendered by each holder. The notice, which shall govern the terms of the Offer to Purchase, shall include such disclosures as are required by law and shall state: 110

Disposition of Proceeds of Asset Sales. (a) The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, make any Asset Sale Sale, unless (ai) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of and (bii) either (A) at least 8575% of such consideration consists of cash or Cash Equivalents or (B) at least 75% of such consideration consists of (A) cash or Cash Equivalents, (Bx) properties and capital assets (including franchises and licenses required to own or operate such properties) to be used in a Permitted Business and/or the same lines of business being conducted by the Company or any Restricted Subsidiary at such time or (Cy) Equity Interests in one or more Persons that are primarily engaged in a Permitted Business so long as upon the consummation of any sale in accordance with this clause (C), such Person becomes a which thereby become Wholly Owned Restricted Subsidiary; provided, however, that, in the case of sales pursuant to clauses (B) and (C) not involving solely an exchange of a Permitted Business and cash (if any), if the Fair Market Value of the Subsidiaries whose assets sold or otherwise disposed of in a single transaction or series of transactions exceeds $5.0 million, the Company shall be required to obtain the written opinion from an Independent Financial Advisor 108 (and file such opinion with the Trustee) stating that the terms consist primarily of such Asset Sale are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Asset Saleproperties and capital assets. The amount of any (i) Indebtedness (other than any Subordinated Indebtedness) liabilities of the Company or any Restricted Subsidiary that is are actually assumed by the transferee in such Asset Sale and from which the Company and the Restricted Subsidiaries are fully released shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries and (ii) notes or other similar obligations received by the Company or the Restricted Subsidiaries from such transferee that are immediately converted, sold or exchanged converted (or are converted, sold or exchanged converted within thirty days of the related Asset Sale) by the Company or the Restricted Subsidiaries into cash shall be deemed to be cash, in an amount equal to the net cash proceeds realized upon such conversion, sale or exchange for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries. Notwithstanding the foregoing, during the term of the Securities, the Company and the Restricted Subsidiaries may engage in Asset Sales involving $10.0 million or more without complying with clause (b) of the first sentence of this paragraph. Notwithstanding the foregoing, the Company or such Restricted Subsidiary, as the case may be, may (i) apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof to repay Senior Indebtedness and permanently reduce any related commitment, (ii) apply such Net Cash Proceeds to repay Specified Indebtedness and, by written notice to the Trustee and the holders (the "Permitted Debt Reduction"), elect to permanently reduce the amount of Specified Indebtedness that may be incurred as Permitted Indebtedness under Section 10.11 by an amount equal to the amount of such Net Cash Proceeds, (iii) apply such Net Proceeds to acquire, construct or improve properties and capital assets to be used on a Permitted Business within 365 days after the receipt thereof or (iv) any combination of the foregoing. 109 To the extent that all or part of the Net Cash Proceeds of any Asset Sale are not applied within 365 days of such Asset Sale as described in clause (i), (ii) or (iii) of the immediately preceding paragraph (such Net Cash Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall, within 20 days after such 365th day, make an offer to purchase ("Offer to Purchase") all outstanding Securities up to a maximum principal amount of Securities equal to the Note Pro Rata Share, at a purchase price in cash equal to 100% of the principal amount of Securities, plus accrued and unpaid interest (including Additional Interest, if any) thereon, if any, to the Purchase Date; provided, however, that the Offer to Purchase may be deferred until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of $10.0 million, at which time the entire amount of such Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this paragraph. In the event that the terms of any Other Pari Passu Indebtedness requires that an offer to purchase be made to repurchase such Indebtedness upon the consummation of any Asset Sale (the "Other Indebtedness"), the Company may use the Unutilized Net Cash Proceeds otherwise required to be used to make an Offer to Purchase or to retire such Other Pari Passu Indebtedness and to make an Offer to Purchase so long as the amount of such Unutilized Net Cash Proceeds available to be applied to purchase the Securities is not less than the Note Pro Rata Share. With respect to any Unutilized Net Cash Proceeds, the Company shall make the Offer to Purchase in respect thereof at the same time as the analogous offer to purchase is made under any Other Indebtedness and the Purchase Date in respect thereof shall be the same under this Indenture as the Purchase Date in respect thereof pursuant to any Other Indebtedness. With respect to any Offer to Purchase effected pursuant to this covenant, to the extent that the principal amount of the Securities tendered pursuant to such Offer to Purchase exceeds the Note Pro Rata Share to be applied to the purchase thereof, such Securities shall be purchased pro rata based on the principal amount of such Securities tendered by each holder. The notice, which shall govern the terms of the Offer to Purchase, shall include such disclosures as are required by law and shall state: 110.

Disposition of Proceeds of Asset Sales. (a) The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Asset Sale Sale, unless (ai) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of and (bii) at least 8575% of such consideration consists of (A) cash cash, Cash Equivalents or Cash Equivalents, (B) properties and capital assets to be used in a Permitted Business and/or (C) Equity Interests in one Consideration or more Persons that are primarily engaged in a Permitted Business so long as upon the consummation of any sale in accordance with this clause (C), such Person becomes a Wholly Owned Restricted Subsidiarycombination thereof; provided, however, that, in the case of sales pursuant to clauses (B) and (C) not involving solely an exchange of a Permitted Business and cash (if any), if the Fair Market Value of the assets sold or otherwise disposed of in a single transaction or series of transactions exceeds $5.0 million, the Company shall be required to obtain the written opinion from an Independent Financial Advisor 108 (and file such opinion with the Trustee) stating provided that the terms of such Asset Sale are fair, from a financial point of view, to the Company principal amount (or the Restricted Subsidiary involved in such Asset Sale. The amount accreted value) of any (iA)(x) Indebtedness (other than any Subordinated IndebtednessIndebtedness or Pari Passu Debt) of the Company or any Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and the Restricted Subsidiaries are fully and unconditionally released and (y) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale to the extent that the Company and each other Restricted Subsidiary are released from their guarantee of such Indebtedness in connection with such Asset Sale, shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries and (iiB) notes or other securities or similar obligations received by the Company or the Restricted Subsidiaries from such transferee that are immediately converted, sold or exchanged (or are converted, sold or exchanged within thirty 90 days of the related Asset Sale) by the Company or the Restricted Subsidiaries into cash shall be deemed to be cash, cash in an amount equal to the net cash proceeds realized upon such conversion, sale or exchange for purposes of determining the percentage amount of cash consideration received by the Company or the Restricted Subsidiaries. Notwithstanding the foregoing, during the term of the Securities, the Company and the Restricted Subsidiaries may engage in With respect to any Asset Sales involving $10.0 million or more without complying with clause (b) of the first sentence of this paragraph. Notwithstanding the foregoingSale, the Company or such Restricted Subsidiary, as the case may be, may (i) apply the Net Cash Proceeds of any such Asset Sale within 365 days of receipt thereof to repay Senior Indebtedness and permanently reduce any related commitmentIndebtedness, (ii) apply the Net Cash Proceeds of such Asset Sale to purchase Replacement Assets or (iii) apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof or repay Pari Passu Debt not exceeding the Pari Passu Debt Pro Rata Share. Notwithstanding the foregoing, (x) up to $35.0 million of Net Cash Proceeds in aggregate need not be applied in accordance with the preceding clauses (i), (ii) and (iii) and need not be treated as Unutilized Net Cash Proceeds under the following paragraph and (y) in the event a Restricted Subsidiary that is not a Wholly-Owned Restricted Subsidiary dividends or distributes to all of its stockholders on a pro rata basis any Net Cash Proceeds to the Company or another Restricted Subsidiary, the Company or such Restricted Subsidiary need only apply its share of such Net Cash Proceeds to repay Specified Indebtedness and, by written notice to in accordance with the Trustee and the holders preceding clause (the "Permitted Debt Reduction"i), elect to permanently reduce the amount of Specified Indebtedness that may be incurred as Permitted Indebtedness under Section 10.11 by an amount equal to the amount of such Net Cash Proceeds, (ii) or (iii) apply such Net Proceeds to acquire, construct or improve properties and capital assets to be used on a Permitted Business within 365 days after the receipt thereof or (iv) any combination of the foregoing). 109 To the extent that all or part of the Net Cash Proceeds of any Asset Sale are not applied within 365 days of such Asset Sale in accordance with the preceding paragraph (except as described in clause (i), (iiotherwise permitted therein) or (iii) the proviso of the immediately preceding first paragraph of this Section 4.05 (such Net Cash Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall, within 20 days after such 365th day, make an offer to purchase ("Offer to Purchase") Purchase all outstanding Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to the Note Pro Rata Sharesuch Unutilized Net Cash Proceeds, at a purchase price in cash equal to 100% of the principal amount of Securitiesthereof, plus accrued and unpaid interest (including Additional Interest, if any) thereon, if any, to the Purchase Date; provided, however, provided that the Offer to Purchase may be deferred until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of $10.0 50.0 million, at which time the entire amount of such Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0 50.0 million, shall be applied as required pursuant to this paragraph. In the event that the terms of any Other Pari Passu Indebtedness requires that an offer to purchase be made to repurchase such Indebtedness upon the consummation of any Asset Sale (the "Other Indebtedness"), the Company may use the Unutilized Net Cash Proceeds otherwise required to be used to make an Offer to Purchase or to retire such Other Pari Passu Indebtedness and to make an Offer to Purchase so long as the amount of such Unutilized Net Cash Proceeds available to be applied to purchase the Securities is not less than the Note Pro Rata Share. With respect to any Unutilized Net Cash Proceeds, the Company shall make the Offer to Purchase in respect thereof at the same time as the analogous offer to purchase is made under any Other Indebtedness and the Purchase Date in respect thereof Each Holder shall be the same under this Indenture as the Purchase Date in respect thereof pursuant entitled to tender all or any Other Indebtedness. With respect to any Offer to Purchase effected pursuant to this covenant, to the extent that the principal amount portion of the Securities tendered owned by such Holder pursuant to such Offer to Purchase exceeds the Note Pro Rata Share to be applied to the purchase thereof, such Securities shall be purchased pro rata based on the principal amount of such Securities tendered by each holder. The notice, which shall govern the terms of the Offer to Purchase, shall include such disclosures subject to the requirement that any portion of a Security tendered must be tendered in an integral multiple of $1,000 principal amount and subject to any proration among tendering Holders as are required by law and shall state: 110described in paragraph (b) below.

Disposition of Proceeds of Asset Sales. The Company will not, and will not permit any Restricted Subsidiary to, make any Asset Sale unless (a) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of and (b) at least 85% of such consideration consists of (A) cash or Cash Equivalents, (B) properties and capital assets to be used in a Permitted Business and/or (C) Equity Interests in one or more Persons that are primarily engaged in a Permitted Business so long as upon the consummation of any sale in accordance with this clause (C), such Person becomes a Wholly Owned Restricted Subsidiary; provided, however, that, in the case of sales pursuant to clauses (B) and (C) not involving solely an exchange of a Permitted Business and cash (if any), if the Fair Market Value of the assets sold or otherwise disposed of in a single transaction or series of transactions exceeds $5.0 million, the Company shall be required to obtain the written opinion from an Independent Financial Advisor 108 (and file such opinion with the Trustee) stating that the terms of such Asset Sale are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Asset Sale. The amount of any (i) Indebtedness (other than any Subordinated Indebtedness) of the Company or any Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and the Restricted Subsidiaries are fully released shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries and (ii) notes or other similar obligations received by the Company or the Restricted Subsidiaries from such transferee that are immediately converted, sold or exchanged (or are converted, sold or exchanged within thirty days of the related Asset Sale) by the Company or the Restricted Subsidiaries into cash shall be deemed to be cash, in an amount equal to the net cash proceeds realized upon such conversion, sale or exchange for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries. Notwithstanding the foregoing, during the term of the Securities, the Company and the Restricted Subsidiaries may engage in Asset Sales involving up to $10.0 million or more without complying with clause (b) of the first sentence of this paragraph. Notwithstanding the foregoing, the Company or such Restricted Subsidiary, as the case may be, may (i) apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof to repay Senior or purchase or retire Indebtedness of Systems and permanently reduce any related commitment, (ii) apply such Net Cash Proceeds to repay Specified Indebtedness and, by written notice to the Trustee and the holders (the "Permitted Debt Reduction"), elect to permanently reduce the amount of Specified Indebtedness that may be incurred as Permitted Indebtedness under Section 10.11 by an amount equal to the amount of such Net Cash Proceeds, (iii) apply such Net Proceeds to acquire, construct or improve properties and capital assets to be used on a Permitted Business within 365 days after the receipt thereof thereof, or (iviii) any combination of the foregoing. 109 To the extent that all or part of the Net Cash Proceeds of any Asset Sale are not applied (or, in the case of clause (i) above, an offer to purchase or retire such Indebtedness of Systems has not been made) within 365 days of such Asset Sale as described in clause (i), (ii) or (iiiii) of the immediately preceding paragraph (such Net Cash Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall, within 20 days after such 365th day, make an offer to purchase ("Offer to Purchase") all outstanding Securities up to a maximum principal amount of Securities equal to the Note Pro Rata ShareSecurities, at a purchase price in cash equal to 100% of the Accreted Value of the Securities on the Purchase Date, unless the Purchase Date is on or after March 1, 2004, in which case such purchase price shall be an amount in cash equal to 100% of the principal amount of Securitiesat maturity thereof, plus accrued and unpaid interest (including Additional Interest, if 108 -100- any) thereon, if any, to the Purchase Date; provided, however, that the Offer to Purchase may be deferred until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of $10.0 million, at which time the entire amount of such Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this paragraph. In the event that the terms of any Other Pari Passu Indebtedness requires that an offer to purchase be made to repurchase such Indebtedness upon the consummation of any Asset Sale (the "Other Indebtedness"), the Company may use the Unutilized Net Cash Proceeds otherwise required to be used to make an Offer to Purchase or to retire such Other Pari Passu Indebtedness and to make an Offer to Purchase so long as the amount of such Unutilized Net Cash Proceeds available to be applied to purchase the Securities is not less than the Note Pro Rata Share. With respect to any Unutilized Net Cash Proceeds, the Company shall make the Offer to Purchase in respect thereof at the same time as the analogous offer to purchase is made under any Other Indebtedness and the Purchase Date in respect thereof shall be the same under this Indenture as the Purchase Date in respect thereof pursuant to any Other Indebtedness. With respect to any Offer to Purchase effected pursuant to this covenant, to the extent that the principal amount at maturity of the Securities tendered pursuant to such Offer to Purchase exceeds the Note Pro Rata Share Net Cash Proceeds to be applied to the purchase thereof, such Securities shall be purchased pro rata based on the principal amount at maturity of such Securities tendered by each holder. The In the event that the Company makes an Offer to Purchase the Securities, the Company shall comply with any applicable securities laws and regulations, including any applicable requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act, and any violation of the provisions of the Indenture relating to such Offer to Purchase occurring as a result of such compliance shall not be deemed an Event of Default or an event that with the passing of time or giving of notice, which or both, would constitute an Event of Default. Each holder of Securities shall govern be entitled to tender all or any portion of the terms of Securities owned by such holder pursuant to the Offer to Purchase, shall include such disclosures subject to the requirement that any portion of a Security tendered must be tendered in an integral multiple of $1,000 principal amount at maturity and subject to any proration among tendering holders as are required by law and shall state: 110described above.

Disposition of Proceeds of Asset Sales. (a) The Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Asset Sale Sale, unless (ai) the Company or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of and (bii) at least 8575% of such consideration consists of (A) cash or Cash Equivalents, (B) properties and capital assets to be used in a Permitted Business and/or (C) Equity Interests in one or more Persons that are primarily engaged in a Permitted Business so long as upon the consummation of any sale in accordance with this clause (C), such Person becomes a Wholly Owned Restricted Subsidiary; provided, however, that, in the case of sales pursuant to clauses (B) and (C) not involving solely an exchange of a Permitted Business and cash (if any), if the Fair Market Value of the assets sold or otherwise disposed of in a single transaction or series of transactions exceeds $5.0 million, the Company shall be required to obtain the written opinion from an Independent Financial Advisor 108 (and file such opinion with the Trustee) stating that the terms of such Asset Sale are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Asset Sale. The amount of any (i) Indebtedness (other than any Subordinated Indebtedness) of the Company or any a Restricted Subsidiary that is not a Guarantor that is actually assumed by the transferee in such Asset Sale and from which the Company and the Restricted Subsidiaries are fully released shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale) and (ii) notes or other similar obligations received by the Company or the any Restricted Subsidiaries Subsidiary from such transferee that are immediately converted, sold or exchanged (or are converted, sold or exchanged within thirty days of the related Asset Sale) by the Company or the Restricted Subsidiaries into cash shall be deemed to be cash, in an amount equal to the net cash proceeds Net Cash Proceeds realized upon such conversion, sale or exchange for purposes of determining the percentage of cash consideration received by the Company or the Restricted Subsidiaries. Notwithstanding the foregoing, during the term of the Securities, the Company and the Restricted Subsidiaries may engage in Asset Sales involving $10.0 million or more without complying with clause (b) of the first sentence of this paragraph. Notwithstanding the foregoing, the Company or such Restricted Subsidiary, as the case may be, may (i) apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt thereof to repay Senior Indebtedness and permanently reduce any related commitment, (ii) apply such Net Cash Proceeds to repay Specified Indebtedness and, by written notice to the Trustee and the holders (the "Permitted Debt Reduction"), elect to permanently reduce the amount of Specified Indebtedness that may be incurred as Permitted Indebtedness under Section 10.11 by an amount equal to the amount of such Net Cash Proceeds, (iii) apply such Net Proceeds to acquire, construct or improve properties and capital assets to be used on a Permitted Business within 365 days after the receipt thereof or (iv) any combination of the foregoing. 109 To the extent that all or part of the Net Cash Proceeds of any Asset Sale are not applied within 365 days of such Asset Sale as described in clause (i), (ii) or (iii) of the immediately preceding paragraph (such Net Cash Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall, within 20 days after such 365th day, make an offer to purchase ("Offer to Purchase") all outstanding Securities up to a maximum principal amount of Securities equal to the Note Pro Rata Share, at a purchase price in cash equal to 100% of the principal amount of Securities, plus accrued and unpaid interest (including Additional Interest, if any) thereon, if any, to the Purchase Date; provided, however, that the Offer to Purchase may be deferred until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of $10.0 million, at which time the entire amount of such Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this paragraph. In the event that the terms of any Other Pari Passu Indebtedness requires that an offer to purchase be made to repurchase such Indebtedness upon the consummation of any Asset Sale (the "Other Indebtedness"), the Company may use the Unutilized Net Cash Proceeds otherwise required to be used to make an Offer to Purchase or to retire such Other Pari Passu Indebtedness and to make an Offer to Purchase so long as the amount of such Unutilized Net Cash Proceeds available to be applied to purchase the Securities is not less than the Note Pro Rata Share. With respect to any Unutilized Net Cash Proceeds, the Company shall make the Offer to Purchase in respect thereof at the same time as the analogous offer to purchase is made under any Other Indebtedness and the Purchase Date in respect thereof shall be the same under this Indenture as the Purchase Date in respect thereof pursuant to any Other Indebtedness. With respect to any Offer to Purchase effected pursuant to this covenant, to the extent that the principal amount of the Securities tendered pursuant to such Offer to Purchase exceeds the Note Pro Rata Share to be applied to the purchase thereof, such Securities shall be purchased pro rata based on the principal amount of such Securities tendered by each holder. The notice, which shall govern the terms of the Offer to Purchase, shall include such disclosures as are required by law and shall state: 110.

Disposition of Proceeds of Asset Sales. The Company (a) FTL-Cayman will not, and will not cause or permit any Restricted Subsidiary of FTL-Cayman to, directly or indirectly, make any Asset Sale Sale, unless (ai) the Company FTL-Cayman or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value of the assets sold or otherwise disposed of and (bii) at least 8575% of such consideration consists of (A) cash or Cash Equivalents, Equivalents or (B) Capital Stock in any person which thereby becomes a Wholly Owned Subsidiary of FTL-Cayman whose assets consist primarily of properties and capital assets to be used in a Permitted Business and/or (C) Equity Interests the same line of business being conducted by FTL-Cayman or any Subsidiary of FTL-Cayman at such time. In lieu of the consideration described in one or more Persons that are primarily engaged in a Permitted Business so long as upon the consummation of any sale in accordance with this clause (C)ii) above, FTL-Cayman or any Subsidiary of FTL-Cayman may receive consideration from an Asset Sale or Asset Sales consisting of obligations payable to the sellers of such Person becomes a Wholly Owned Restricted Subsidiaryasset or assets in an aggregate amount not to exceed $50,000,000 at any time outstanding; provided, however, that, that all consideration received from an Asset Sale or Asset Sales in the case excess of sales pursuant such $50,000,000 shall be subject to clauses clause (Bii) and (C) not involving solely an exchange of a Permitted Business and cash (if any), if the Fair Market Value of the assets sold or otherwise disposed of in a single transaction or series of transactions exceeds $5.0 million, the Company shall be required to obtain the written opinion from an Independent Financial Advisor 108 (and file such opinion with the Trustee) stating that the terms of such Asset Sale are fair, from a financial point of view, to the Company or the Restricted Subsidiary involved in such Asset Saleimmediately preceding sentence. The amount of any (i) Indebtedness (other than any Subordinated Indebtedness) Debt of the Company or any Restricted a Subsidiary of FTL-Cayman that is actually assumed by the transferee in such Asset Sale and from which the Company FTL-Cayman and the Restricted Subsidiaries of FTL-Cayman are fully released shall be deemed to be cash for purposes of determining the percentage of cash consideration received by the Company FTL-Cayman or the Restricted Subsidiaries of FTL-Cayman (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale) and (ii) notes or other similar obligations received by the Company FTL-Cayman or the Restricted Subsidiaries any Subsidiary of FTL-Cayman from such transferee that are immediately converted, sold or exchanged (or are converted, sold or exchanged within thirty 60 days of the related Asset Sale) by the Company FTL-Cayman or the Restricted Subsidiaries of FTL-Cayman into cash shall be deemed to be cash, in an amount equal to the net cash proceeds realized upon such conversion, sale or exchange for purposes of determining the percentage of cash consideration received by the Company FTL-Cayman or the Restricted SubsidiariesSubsidiaries of FTL-Cayman. Notwithstanding the foregoing, during the term of the Securities, the Company and the Restricted Subsidiaries may engage in Asset Sales involving $10.0 million or more without complying with clause (b) of the first sentence of this paragraph. Notwithstanding the foregoing, the Company FTL-Cayman or such Restricted SubsidiarySubsidiary of FTL-Cayman, as the case may be, may (i) apply the Net Available Cash Proceeds of any Asset Sale within 365 days of receipt thereof to (i) repay Senior Indebtedness Debt of FTL-Cayman or any Subsidiary of FTL-Cayman (other than Subordinated Obligations) and permanently reduce any related commitment, or (ii) apply such Net Cash Proceeds to repay Specified Indebtedness and, by written notice to the Trustee and the holders (the "Permitted Debt Reduction"), elect to permanently reduce the amount of Specified Indebtedness that may be incurred as Permitted Indebtedness under Section 10.11 by an amount equal to the amount of such Net Cash Proceeds, (iii) apply such Net Proceeds to make Asset Acquisitions or acquire, construct or improve properties and or capital assets assets, in each case, to be used on a Permitted Business within 365 days after the receipt thereof or (iv) any combination of the foregoing. 109 To the extent that all or part of the Net Cash Proceeds of any Asset Sale are not applied within 365 days of such Asset Sale as described in clause (i), (ii) or (iii) of the immediately preceding paragraph (such Net Cash Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall, within 20 days after such 365th day, make an offer to purchase ("Offer to Purchase") all outstanding Securities up to a maximum principal amount of Securities equal to the Note Pro Rata Share, at a purchase price in cash equal to 100% of the principal amount of Securities, plus accrued and unpaid interest (including Additional Interest, if any) thereon, if any, to the Purchase Date; provided, however, that the Offer to Purchase may be deferred until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of $10.0 million, at which time the entire amount of such Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this paragraph. In the event that the terms of any Other Pari Passu Indebtedness requires that an offer to purchase be made to repurchase such Indebtedness upon the consummation of any Asset Sale (the "Other Indebtedness"), the Company may use the Unutilized Net Cash Proceeds otherwise required to be used to make an Offer to Purchase or to retire such Other Pari Passu Indebtedness and to make an Offer to Purchase so long as the amount of such Unutilized Net Cash Proceeds available to be applied to purchase the Securities is not less than the Note Pro Rata Share. With respect to any Unutilized Net Cash Proceeds, the Company shall make the Offer to Purchase in respect thereof at the same time as the analogous offer to purchase is made under line of business being conducted by FTL-Cayman or any Other Indebtedness and the Purchase Date in respect thereof shall be the same under this Indenture as the Purchase Date in respect thereof pursuant to any Other Indebtedness. With respect to any Offer to Purchase effected pursuant to this covenant, to the extent that the principal amount Subsidiary of the Securities tendered pursuant to FTL-Cayman at such Offer to Purchase exceeds the Note Pro Rata Share to be applied to the purchase thereof, such Securities shall be purchased pro rata based on the principal amount of such Securities tendered by each holder. The notice, which shall govern the terms of the Offer to Purchase, shall include such disclosures as are required by law and shall state: 110time.