Common use of Events of Loss Clause in Contracts

Events of Loss. (i) If the Company or a Restricted Subsidiary suffers an Event of Loss, any Net Cash Proceeds therefrom in excess of U.S.$20,000,000 shall be deposited by the Company or the Restricted Subsidiary, as the case may be, in an interest bearing cash collateral account subject to a second-priority Lien securing the Notes pending application of it in accordance with this Section 3.7. Any Net Cash Proceeds in the interest bearing cash collateral account shall be maintained in the form of cash and Cash Equivalents, and any interest thereon shall be payable to the Company or the Restricted Subsidiary, as the case may be. Any Net Cash Proceeds from an Event of Loss that is described in clause (iii) of the definition thereof shall be applied by the Company to make an Asset Sale Offer in accordance with the terms set forth in Section 3.7(c). Any Net Cash Proceeds from an Event of Loss that is described in clauses (i) or (ii) of the definition thereof may be applied by the Company or such Restricted Subsidiary within 365 days of the receipt thereof to (A) purchase Replacement Assets from a Person other than the Company and its Restricted Subsidiaries or (B) prepay, repay, redeem, repurchase or retire any Indebtedness for borrowed money or constituting a Capitalized Lease Obligation or Attributable Indebtedness in respect of Sale and Leaseback Transactions (other than Subordinated Indebtedness) and permanently reduce the commitments, if any, with respect thereto.

Events of Loss. (i) If In the Company or a Restricted Subsidiary suffers event of an Event of Loss, any Loss resulting in Net Cash Loss Proceeds therefrom in excess of U.S.$20,000,000 shall be deposited by $5.0 million, the Company or the affected Restricted SubsidiarySubsidiary of the Company, as the case may be, may (and to the extent required pursuant to the terms of any lease encumbered by a Mortgage shall) (x) to the extent such Net Loss Proceeds constitute ABL Priority Collateral (as defined in an interest bearing cash collateral account subject to a second-priority Lien securing the Notes pending application of it Credit Agreement), repay ABL Obligations with or reinvest such Net Loss Proceeds in accordance with this Section 3.7. Any Net Cash Proceeds in the interest bearing cash collateral account shall be maintained in the form of cash and Cash EquivalentsABL Documents, and any interest thereon shall be payable (y) to the Company or the Restricted Subsidiary, as the case may be. Any extent such Net Cash Loss Proceeds constitute (i) proceeds from an Event of Loss that is described in clause (iii) of the definition thereof shall be applied by the Company with respect to make an Asset Sale Offer in accordance with the terms set forth in Section 3.7(c). Any Net Cash Proceeds from an Event of Loss that is described in clauses (i) Real Property or (ii) up to 50% of the definition thereof may be applied by Net Loss Proceeds from Events of Loss with respect to property and assets (other than Real Property) to purchase, redeem or make one or more offers to purchase Existing Senior Notes, provided that in connection with any prepayment, repayment or purchase of Debt pursuant to this sentence, the Company or such Restricted Subsidiary shall permanently retire and cancel such Existing Senior Notes or (z) otherwise apply the Net Loss Proceeds from such Event of Loss to the rebuilding, repair, replacement or construction of improvements to the property affected by such Event of Loss, or the cost of purchase or construction of other assets useful in the business of the Company or its Restricted Subsidiaries with no concurrent obligation to offer to purchase any of the Notes; provided, however, that the Company delivers to the Trustee within 90 days of such Event of Loss an Officers’ Certificate certifying that the Company applied (or will apply within 365 days after receipt of any anticipated insurance or similar proceeds) the Net Loss Proceeds in accordance with this sentence. Any Net Loss Proceeds that are not applied or reinvested or not permitted to be applied or reinvested as provided in the first sentence of this Section 4.16 will be deemed “Excess Loss Proceeds.” When the aggregate amount of Excess Loss Proceeds exceeds $10.0 million, the Company will make an offer (an “Event of Loss Offer”) to all Holders in an amount equal to the maximum principal amount of Notes that may be purchased out of the receipt thereof Excess Loss Proceeds. The offer price in any Event of Loss Offer will be equal to (A) purchase Replacement Assets from a Person other than 100% of the Company principal amount plus accrued and its Restricted Subsidiaries or (B) prepay, repay, redeem, repurchase or retire any Indebtedness for borrowed money or constituting a Capitalized Lease Obligation or Attributable Indebtedness in respect of Sale and Leaseback Transactions (other than Subordinated Indebtedness) and permanently reduce the commitmentsunpaid interest, if any, to the date of purchase, and will be payable in cash. If any Excess Loss Proceeds remain after consummation of an Event of Loss Offer, the Company may use such Excess Loss Proceeds for any purpose not otherwise prohibited by this Indenture and the Security Documents and such remaining amount shall not be added to any subsequent Excess Loss Proceeds for any purpose under this Indenture; provided that any remaining Excess Loss Proceeds shall remain subject to the Lien of the Security Documents. If the aggregate principal amount of Notes tendered pursuant to an Event of Loss Offer exceeds the Excess Loss Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis based on the principal amount tendered, subject to adjustments to maintain authorized denominations. The Company will comply with respect theretoSection 3.9 in connection with any Event of Loss Offer. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Event of Loss Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with the Event of Loss provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Event of Loss provisions of this Indenture by virtue of such compliance.

Events of Loss. (i) If In the Company or a Restricted Subsidiary suffers event of an Event of Loss, any the Company or the applicable Restricted Subsidiary may apply the Net Cash Loss Proceeds therefrom from such Event of Loss to make an investment in excess of U.S.$20,000,000 or expenditures for Replacement Assets (provided that such Replacement Assets shall be deposited become Collateral). Any Net Loss Proceeds that the Company or the applicable Restricted Subsidiary does not apply, or determines not to apply, in accordance with the preceding paragraph will constitute "Excess Net Loss Proceeds." The 366th day after receipt by the Company or the applicable Restricted Subsidiary, as Subsidiary of the case may be, in an interest bearing cash collateral account subject Net Loss Proceeds or any earlier date on which the board of managers or directors of the Company or board of the applicable Restricted Subsidiary determines not to a second-priority Lien securing apply the Notes pending application of it Net Loss Proceeds in accordance with the preceding paragraph is a "Net Loss Proceeds Offer Trigger Date." When the aggregate amount of Excess Net Loss Proceeds equals or exceeds $15 million, the Company will be required to make an offer (a "Net Loss Proceeds Offer") to purchase, on a date (the "Net Loss Proceeds Offer Payment Date") that is not less than 30 nor more than 45 days following the applicable Net Loss Proceeds Offer Trigger Date, from all Holders of Notes, on a pro rata basis, the maximum principal amount of Notes that may be purchased with such Excess Net Loss Proceeds. The offer price for Notes in any Net Loss Proceeds Offer will be equal to 100% of their principal amount, plus any accrued and unpaid interest to the date of purchase. Each notice of a Net Loss Proceeds Offer pursuant to this Section 3.7. Any Net Cash Proceeds in the interest bearing cash collateral account 4.20 shall be maintained in the form of cash and Cash Equivalentsmailed, and any interest thereon shall be payable to the Company or the Restricted Subsidiaryby first-class mail, as the case may be. Any Net Cash Proceeds from an Event of Loss that is described in clause (iii) of the definition thereof shall be applied by the Company to make an Asset Sale Holders of Notes at their last registered address not more than 30 days following the Net Loss Proceeds Offer in accordance with the terms set forth in Section 3.7(c). Any Net Cash Proceeds from an Event of Loss that is described in clauses (i) or (ii) of the definition thereof may be applied by the Company or such Restricted Subsidiary within 365 days of the receipt thereof to (A) purchase Replacement Assets from a Person other than the Company and its Restricted Subsidiaries or (B) prepay, repay, redeem, repurchase or retire any Indebtedness for borrowed money or constituting a Capitalized Lease Obligation or Attributable Indebtedness in respect of Sale and Leaseback Transactions (other than Subordinated Indebtedness) and permanently reduce the commitments, if anyTrigger Date, with respect thereto.a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Loss Proceeds Offer and shall state the following terms:

Events of Loss. (i) If In the Company or a Restricted Subsidiary suffers event of an Event of Loss, the Company or the applicable Restricted Subsidiary may apply the Net Loss Proceeds from such Event of Loss to (I) make an investment in or expenditures for Replacement Assets (provided that such Replacement Assets shall become Collateral) or (II) make an acquisition of all of the Capital Stock or assets of any Net Cash Proceeds therefrom in excess Person or division conducting a business reasonably related to that of U.S.$20,000,000 the Company or its subsidiaries (provided that the assets so acquired shall be deposited become Collateral). The 366th day after receipt by the Company or the applicable Restricted Subsidiary, as Subsidiary of the case may be, in an interest bearing cash collateral account subject to a second-priority Lien securing Net Loss Proceeds or any earlier date on which the Notes pending application board of it in accordance with this Section 3.7. Any Net Cash Proceeds in the interest bearing cash collateral account shall be maintained in the form managers or directors of cash and Cash Equivalents, and any interest thereon shall be payable to the Company or board of the applicable Restricted Subsidiary, as Subsidiary determines not to apply the case may be. Any Net Cash Loss Proceeds from (other than in connection with an Event of Loss that is described in clause (iiifor which the Net Loss Proceeds do not exceed $5.0 million) of the definition thereof shall be applied by the Company to make an Asset Sale Offer in accordance with the terms set forth in Section 3.7(cpreceding paragraph (each, a "Net Loss Proceeds Offer Trigger Date"). Any , such aggregate amount of Net Cash Loss Proceeds from an Event which have not been applied or contractually committed to be applied (and to the extent not subsequently applied, the Net Loss Proceeds Offer Trigger Date shall be deemed to be the date of termination of such contractual commitment) on or before such Net Loss that is described in clauses Proceeds Offer Trigger Date as permitted by the preceding paragraph (ithe "Excess Net Loss Proceeds") or (ii) of the definition thereof may shall be applied by the Company or such Restricted Subsidiary within 365 to make an offer to purchase (or prepay, repay or redeem, as the case may be) (the "Net Loss Proceeds Offer") on a date (the "Net Loss Proceeds Offer PaymentDate") that is not less than 30 nor more than 45 days following the applicable Net Loss Proceeds Offer Trigger Date, from: • all Holders of Notes (including any Additional Notes subsequently issued under this Indenture), and • all other Holders of Pari Passu Indebtedness that contains provisions requiring that an offer to purchase (or other repayment, prepayment or redemption, as applicable) of such other Indebtedness be made with the Net Loss Proceeds, on a pro rata basis, the maximum principal amount of Notes and other Indebtedness that may be purchased with such Excess Net Loss Proceeds. The offer price for Notes in any Net Loss Proceeds Offer will be equal to 100% of their principal amount, plus any accrued and unpaid interest to the date of purchase. The pro rata portion of the receipt thereof Net Loss Excess Proceeds allocable to the Holders of Notes (the "Notes Excess Net Loss Proceeds") shall be determined as of the date of the applicable Event of Loss and shall be equal to an amount determined by multiplying the Net Loss Excess Proceeds by a fraction, the numerator of which is the aggregate principal amount of the Notes outstanding (including any Additional Notes) as of such date of determination and the denominator is the sum of the aggregate principal amount of the Notes and any other Indebtedness otherwise subject to a Net Loss Proceeds Offer in accordance with the second bullet of this paragraph outstanding as of such date of determination. Notwithstanding the foregoing, this Indenture will not prohibit the purchase, repayment, prepayment or redemption of Indebtedness otherwise subject to a Net Loss Proceeds Offer in accordance with the second bullet of the preceding paragraph prior to the consummation of the Net Loss Proceeds Offer as contemplated above; provided that (A) the credit agreement, Indenture or other similar agreement governing such Indebtedness requires such earlier purchase, repayment, prepayment or redemption and (B) in the event of such earlier repayment, prepayment or redemption (other than in compliance with clauses (I) above), (i) the Notes Excess Net Loss Proceeds will only be available to make a Net Loss Proceeds Offer to Holders of the Notes and (ii) the Net Loss Proceeds Offer Trigger Date shall be deemed to be a date of such earlier purchase, repayment, prepayment or redemption. The Company may defer the Net Loss Proceeds Offer until there is an aggregate unutilized Notes Excess Net Loss Proceeds equal to or in excess of $10 million resulting from one or more Event of Loss (at which time the entire unutilized Notes Excess Net Loss Proceeds, and not just the amount in excess of $10 million, shall be applied to a Net Loss Proceeds Offer for the Notes) (and at which time any other unutilized Excess Net Loss Proceeds shall be applied to such Net Loss Proceeds Offer for the applicable Indebtedness). Each Net Loss Proceeds Offer for Notes will be mailed to the record Holders as shown on the register of Holders within 30 days following the Net Loss Proceeds Offer Trigger Date, with a copy to the trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Loss Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000, as the case may be, in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Excess Net Loss Proceeds available to purchase Replacement Assets Notes in connection with the Net Loss Proceeds Offer, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Loss Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. All Net Loss Proceeds shall, pending their application in accordance with this Section 4.20 or the release thereof in accordance with the provisions of this Indenture and the Security Documents, be deposited and held in the Collateral Account; provided that such Net Loss Proceeds may be withdrawn from the Collateral Account from time to time solely to be applied in accordance with this Section 4.20. To the extent that any Excess Net Loss Proceeds remain after consummation of a Person Net Loss Proceeds Offer, the Company or any of its Restricted Subsidiaries may use such remaining Excess Net Loss Proceeds for any purpose permitted by the other provisions of this Indenture. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Loss Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the "Events of Loss" provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.20 by virtue thereof. This section shall only apply to Events of Loss that occur at a time when there are no outstanding obligations or commitments under any First Priority Senior Secured Indebtedness or Second Priority Senior Secured Indebtedness other than the Company Notes and its Restricted Subsidiaries or (B) prepay, repay, redeem, repurchase or retire any Indebtedness for borrowed money or constituting a Capitalized Lease Obligation or Attributable Indebtedness in respect of Sale and Leaseback Transactions (other than Subordinated Indebtedness) and permanently reduce the commitments, if any, with respect thereto.Guarantees. ARTICLE FIVE