Common use of Excess Cash Flow Offer Clause in Contracts

Excess Cash Flow Offer. Within one hundred twenty (120) days after the end of each fiscal year, the Issuer will make an Offer to Purchase to all Holders (the "Excess Cash ----------- Flow Offer") to purchase the maximum principal amount of Notes that is an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) of Excess Cash Flow for such fiscal year (the "Excess Cash Flow Offer Amount"), at ----------------------------- a purchase price in cash equal to one hundred one percent (101%) of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to the date fixed for the closing of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the Excess Cash Flow Offer ------- Amount exceeds $2,000,000. Each Excess Cash Flow Offer will remain open for a period of twenty (20) Business Days and no longer, unless a longer period is required by law (the "Excess Cash Flow Offer Period"). Promptly after the ----------------------------- termination of the Excess Cash Flow Offer Period, the Issuer will purchase and mail or deliver payment for the Excess Cash Flow Offer Amount for the Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered pursuant to the Excess Cash Flow Offer. The principal amount of Notes to be purchased pursuant to an Excess Cash Flow Offer may be reduced by the principal amount of Notes acquired by the Issuer through purchase or redemption (other than pursuant to a Change of Control Offer or an Amortization Offer) surrendered to the Trustee for cancellation. If the aggregate amount of Notes tendered pursuant to any Excess Cash Flow Offer is less than the Excess Cash Flow Offer Amount, the Issuer may, subject to the other provisions of this Indenture and the Collateral Documents, use any remaining Excess Cash Flow for general corporate purposes. The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer to make an Excess Cash Flow Offer or, if such Excess Cash Flow Offer is made, to pay for the Notes tendered for purchase.

Excess Cash Flow Offer. (a) Within one hundred twenty (120) 100 days after each Determination Date for which the end Excess Cash Flow of each fiscal yearPES and its Restricted Subsidiaries for the applicable Excess Cash Flow Offer Determination Period exceeds $2.5 million (the “Excess Cash Flow Offer Threshold”), and to the Issuer extent permitted by its Credit Facilities, PES will make an offer in cash in an amount equal to the Excess Cash Flow Offer Amount to Purchase purchase Notes (an “Excess Cash Flow Offer”) at an offer price equal to all Holders 100% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase (the "“Excess Cash ----------- Flow Offer") to purchase Offer Payment”). If the maximum aggregate principal amount of Notes that is an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) of tendered in such Excess Cash Flow for such fiscal year (Offer exceeds the "Excess Cash Flow Offer Amount"), at ----------------------------- a purchase price in cash equal to one hundred one percent (101%) of the principal amount of Trustee will select the Notes to be purchasedpurchased on a pro rata basis, plus accrued by lot or by such other method as the Trustee deems fair and unpaid interest appropriate. To the extent that the aggregate amount of Notes tendered pursuant to an Excess Cash Flow Offer is less than the date fixed Excess Cash Flow Offer Amount, PES may use any remaining Excess Cash Flow Amount for any purpose not otherwise prohibited by the closing Indenture. Upon completion of any such Excess Cash Flow Offer, the Excess Cash Flow Amount shall be reset at zero; provided that PES will not be deemed to be in default under this covenant for any failure to make an Excess Cash Flow Offer or an Excess Cash Flow Offer Payment by virtue of any adjustment in the amount calculated for any Excess Cash Flow Offer Determination Period due to normal year-end accounting adjustments or other changes concurred in by its public accountants; provided further that any such adjustment in the calculation of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the for a prior Excess Cash Flow Offer ------- Amount exceeds $2,000,000Determination Period, whether positive or negative, shall be carried forward to the next subsequent Excess Cash Flow Offer Determination Period. (b) In the event that, pursuant to Section 4.06(a), PES is required to commence an Excess Cash Flow Offer, it will follow the procedures specified below. (1) Within 100 days following each Determination Date, PES will mail a notice to each Holder and the Trustee offering to repurchase Notes as of the date specified in the notice (the “Excess Cash Flow Offer Purchase Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed. (2) The Excess Cash Flow Offer shall be made to all Holders. Each The Excess Cash Flow Offer will remain open for a period of twenty (20) at least 20 Business Days following its commencement and no longernot more than 30 Business Days, unless except to the extent that a longer period is required by applicable law (the "“Excess Cash Flow Offer Period"”). Promptly No later than three Business Days after the ----------------------------- termination of the Excess Cash Flow Offer Period, the Issuer PES will purchase and mail or deliver payment for apply the Excess Cash Flow Offer Amount for to the purchase of Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered in response to the Excess Cash Flow Offer. (3) If the Excess Cash Flow Offer Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest and Additional Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no further interest will be payable on such Interest Payment Date to Holders who tender Notes pursuant to the Excess Cash Flow Offer. (4) Upon the commencement of an Excess Cash Flow Offer, PES will send, by first class mail (or transmit otherwise in accordance with the procedures of DTC), a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Cash Flow Offer. The principal amount notice, which will govern the terms of Notes the Excess Cash Flow Offer, will state: (A) the CUSIP number; (B) that the Excess Cash Flow Offer is being made pursuant to be purchased this Section 4.06, and the length of time the Excess Cash Flow Offer will remain open; (C) the Excess Cash Flow Offer Amount, the purchase price and the Excess Cash Flow Offer Purchase Date; (D) that any Note not tendered or accepted for payment will continue to accrete or accrue interest; (E) that, unless PES defaults in making such payment, any Note accepted for payment pursuant to the Excess Cash Flow Offer will cease to accrete or accrue interest on and after the Excess Cash Flow Offer Purchase Date; (F) that Holders electing to have a Note purchase pursuant to an Excess Cash Flow Offer may be reduced by the principal amount elect to have Notes purchased in initial denominations of $2,000 and integral multiples of $1,000 in excess thereof; (G) that Holders electing to have Notes acquired by the Issuer through purchase or redemption (other than pursuant to a Change of Control Offer or an Amortization Offer) surrendered to the Trustee for cancellation. If the aggregate amount of Notes tendered purchased pursuant to any Excess Cash Flow Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to PES, a Depositary, if appointed by PES, or a Paying Agent at the address specified in the notice at least three days before the Excess Cash Flow Offer Purchase Date; (H) that Holders will be entitled to withdraw their election if PES, the Depositary or the Paying Agent, as the case may be, receives, not later than the close of business on the second Business Day preceding the Excess Cash Flow Offer Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes delivered for purchase, and a statement that such Holder is withdrawing its election to have such Note purchased; (I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book entry transfer), which unpurchased portion must be equal to $2,000 in principal amount or integral multiples of $1,000 in excess thereof. (5) On or before the Excess Cash Flow Offer Purchase Date, PES will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Excess Cash Flow Offer Amount of Notes or portions thereof tendered pursuant to the Excess Cash Flow Offer, or if less than the Excess Cash Flow Offer AmountAmount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by PES in accordance with the terms of this Section 4.06. PES, the Issuer mayDepositary or the Paying Agent, subject to as the other provisions of this Indenture and case may be, will promptly (but in any case not later than five days after the Collateral Documents, use any remaining Excess Cash Flow for general corporate purposes. The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer to make an Excess Cash Flow Offer orPurchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by PES for purchase, if and PES will promptly issue a new Note, and the Trustee, upon written request from PES, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by PES to the Holder thereof. (6) PES will notify the Trustee and Holders of the Notes of the results of the Excess Cash Flow Offer is made, to pay for as soon as practicable after the Notes tendered for purchaseExcess Cash Flow Offer Purchase Date.

Excess Cash Flow Offer. (a) Within one hundred twenty (120) 120 days after the end of each fiscal yearHotel Operating Year, the Issuer will Issuers shall make an Offer to Purchase offer to all Holders (the "Excess Cash ----------- Flow Offer") to purchase the maximum principal amount of Notes that is an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) 50% of Excess Cash Flow for such fiscal year Operating Year (the "Excess Cash Flow Offer Amount"), at ----------------------------- a purchase price in cash equal to one hundred one percent (101%) % of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to the date fixed for the closing of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the Excess Cash Flow Offer ------- Amount exceeds $2,000,000. Each Excess Cash Flow Offer will shall remain open for a period of twenty (20) 20 Business Days and no longer, unless a longer period is required by law (the "Excess Cash Flow Offer Period"). Promptly after the ----------------------------- termination of the Excess Cash Flow Offer Period, the Issuer will Issuers shall purchase and mail or deliver payment for the Excess Cash Flow Offer Amount for the Notes or portions thereof tendered, pro rata, rata or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered pursuant to the Excess Cash Flow Offer. The principal amount of Notes to be purchased pursuant to an Excess Cash Flow Offer may be reduced by the principal amount of Notes acquired by the Issuer Issuers through purchase or redemption (other than pursuant to a Change of Control Offer or an Amortization Excess Proceeds Offer) surrendered to the Trustee for cancellation. If the aggregate amount of Notes tendered pursuant to any Each Excess Cash Flow Offer is less than shall be conducted in compliance with all applicable laws, including, without limitation, Regulation 14E under the Excess Cash Flow Offer Amount, Exchange Act and the Issuer may, subject to rules thereunder and all other applicable federal and state securities laws. To the other extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture Section 4.20. the Issuers shall comply with the applicable securities laws and the Collateral Documents, use any remaining Excess Cash Flow for general corporate purposesregulations and shall not be deemed to have breached their obligations under this Section 4.20 by virtue thereof. The Issuer Company shall not, and shall not permit any of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer Issuers to make an Excess Cash Flow Offer or, if such Excess Cash Flow Offer is made, to pay for the Notes tendered for purchase. (b) Within 120 days after the end of each Hotel Operating Year, the Issuers shall commence the Excess Cash Flow Offer by mailing to the Trustee and each Holder, at such Holder's last registered address, a notice, which shall govern the terms of the Excess Cash Flow Offer, and shall state: (i) that the Excess Cash Flow Offer is being made pursuant to this Section 4.20, the principal amount of Notes which shall be accepted for payment and that all Notes validly tendered shall be accepted for payment on a pro rata basis; (ii) the purchase price and the date of purchase; (iii) that any Notes not tendered or accepted for payment pursuant to the Excess Cash Flow Offer shall continue to accrue interest in accordance with the terms thereof; (iv) that, unless the Issuers default in the payment of the purchase price with respect to any Notes tendered, Notes accepted for payment pursuant to the Excess Cash Flow Offer shall cease to accrue interest after the Excess Cash Flow Payment Date; (v) that Holders electing to have Notes purchased pursuant to an Excess Cash Flow Offer shall be required to surrender their Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Company prior to the close of business on the third Business Day immediately preceding the Excess Cash Flow Payment Date; (vi) that Holders shall be entitled to withdraw their election if the Issuers receive, not later than the close of business on the second Business Day preceding the Excess Cash Flow Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased; (vii) that Holders whose Notes are purchased only in part shall be issued Notes representing the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount of $1,000 or whole multiples thereof; and (viii) the instructions that Holders must follow in order to tender their Notes. On or before the Excess Cash Flow Payment Date, the Issuers shall (i) accept for payment the Notes or portions thereof (or an allocable amount thereof) tendered pursuant to the Excess Cash Flow Offer, (ii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted and (iii) deliver to the Trustee the Notes so accepted, together with an Officers' Certificate stating that the Notes or portions thereof (or an allocable amount thereof) tendered to the Issuers are accepted for payment. The Paying Agent shall promptly mail to each Holder of Notes so accepted payment in an amount equal to the purchase price of such Notes, and the Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered. After payment to the Holders of the purchase price of all Notes or portions thereof so accepted, the Paying Agent shall deliver promptly to the Issuers the balance, if any, of any money so deposited by the Issuers with the Paying Agent remaining after such payment to the Holders The Issuers shall make a public announcement of the results of the Excess Cash Flow Offer as soon as practicable after the Excess Cash Flow Payment Date. For the purposes of this Section 4.20, the Trustee shall act as the Paying Agent.

Excess Cash Flow Offer. Within one hundred twenty (120a) days after If the end of each fiscal year, the Issuer will make an Offer to Purchase to all Holders (the "Excess Cash ----------- Flow Offer") to purchase the maximum principal amount of Notes that is an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) of Company has Excess Cash Flow for such any fiscal year (commencing with fiscal 2001), the Company shall make an offer to purchase (the "Excess Cash Flow Offer AmountOffer"), at ----------------------------- on a purchase price in cash equal to one hundred one percent (101%) of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to the date fixed for the closing of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the Excess Cash Flow Offer ------- Amount exceeds $2,000,000. Each Excess Cash Flow Offer will remain open for a period of twenty (20) Business Days and no longer, unless a longer period is required by law Day (the "Excess Cash Flow Offer PeriodPayment Date"). Promptly after ) not later than 150 days following the ----------------------------- termination end of such fiscal year, from all Holders of Notes, up to a maximum principal amount (expressed as a multiple of $1,000) of Notes equal to (A) the Noteholders' Pro Rata Share of 50% of such Excess Cash Flow in such fiscal year, minus (B) the principal amount of Notes theretofore purchased by the Company in the open market and the principal amount of Notes theretofore redeemed by the Company pursuant to clause (a) of Section 1101 and not theretofore credited against the Company's obligation to make an Excess Cash Flow Offer Period, the Issuer will purchase and mail or deliver payment for the Excess Cash Flow Offer Amount for the Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered pursuant to the Excess Cash Flow Offera prior fiscal year. The principal amount purchase price of Notes to be purchased pursuant to an Excess Cash Flow Offer may shall be reduced by equal to 100% of the principal amount of Notes acquired by the Issuer through purchase or redemption (other than pursuant to a Change of Control Offer or an Amortization Offer) surrendered thereof, plus accrued and unpaid interest thereon, if any, to the Trustee for cancellationExcess Cash Flow Payment Date. If the aggregate amount of Notes tendered pursuant to any The Excess Cash Flow Offer is less than required to remain open for 20 Business Days and payment pursuant to the Excess Cash Flow Offer Amount, will be made on the Issuer may, subject to the other provisions of this Indenture and the Collateral Documents, use any remaining Excess Cash Flow for general corporate purposes. The Issuer shall notPayment Date. (b) Notwithstanding the foregoing, and shall the Company will not permit any of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer be required to make an Excess Cash Flow Offer or, for any fiscal year if the amount of such Excess Cash Flow Offer would be less than $5.0 million (which amount shall be carried forward for purposes of determining whether an Excess Cash Flow Offer is maderequired with respect to subsequent fiscal years). To the extent an Excess Cash Flow Offer is not fully subscribed to by Holders of the Notes, the unsubscribed portion of such Excess Cash Flow may be retained by the Company and/or used for 91 any purpose, subject to the covenants herein, and shall be excluded from the calculation of Excess Cash Flow for any subsequent period. (c) Notice of each Excess Cash Flow Offer shall be mailed or caused to be mailed by first class mail, not less than 20 Business Days before the Excess Cash Flow Payment Date to all Holders of Notes at their last registered address, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Excess Cash Flow Offer and shall state the following terms: (i) that the Excess Cash Flow Offer is being made pursuant to this Section 1023 and that all Notes tendered and not withdrawn will be accepted for payment; PROVIDED, HOWEVER, that if the aggregate principal amount of Notes tendered in an Excess Cash Flow Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount as contemplated by the first paragraph of this Section 1023, the Company shall select the Notes to be purchased on a PRO RATA basis; (ii) the purchase price (including the amount of accrued interest, if any) and the excess Cash Flow Payment Date and that the Excess Cash Flow Offer is required to remain open for at least 20 Business Days and until the close of business on the Excess Cash Flow Payment Date; (iii) that any Note not tendered will continue to accrue interest; (iv) that unless the Company defaults in making payments therefor, any Note accepted for payment pursuant to the Excess Cash Flow Offer shall cease to accrue interest on and after the Excess Cash Flow Payment Date; (v) that Holders electing to have a Note purchased pursuant to an Excess Cash Flow Offer will be required to surrender such Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to pay for the Paying Agent at the address specified in the notice prior to the close of business on the Excess Cash Flow Payment Date; (vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the 10th Business Day prior to the Excess Cash Flow Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased; and (vii) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered. (d) On or before the Excess Cash Flow Payment Date, the Company shall (1) accept for payment Notes or portions thereof tendered for purchasepursuant to the Excess Cash Flow Offer which are to be purchased in accordance with item (i) above, (2) deposit with the Paying Agent an amount sufficient to pay the purchase price plus accrued interest, if any, of such Notes or the relevant portions thereof and (3) deliver to the Trustee such Notes together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of such Notes payment in an amount equal to the purchase price plus accrued and unpaid interest, if any, and the Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered. For purposes of this Section 1023, the Trustee shall act as the Paying Agent. (e) Any amounts remaining after the purchase of Notes pursuant to an Excess Cash Flow offer shall be returned by the Trustee to the Company. (f) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other applicable laws or regulations in connection with the purchase of Notes pursuant to this covenant. To the extent that the provisions of any applicable laws or regulations conflict with the provisions herein, the Company will comply with the applicable laws and regulations and shall not be deemed to have breached its obligations described under this Section 1023 by virtue thereof.

Excess Cash Flow Offer. Within one hundred twenty (120a) days after If the end of each fiscal year, the Issuer will make an Offer to Purchase to all Holders (the "Excess Cash ----------- Flow Offer") to purchase the maximum principal amount of Notes that is an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) of Company has Excess Cash Flow for such any fiscal year (commencing with fiscal year 2000), the Company shall make an offer to purchase (the "Excess Cash Flow Offer AmountOffer")) on a Business Day (the "Excess Cash Flow Payment Date") not later than 150 days following the end of such fiscal year, at ----------------------------- from each Holder, up to a maximum principal amount (expressed as a multiple of $1,000) of Notes equal to the Holder's Pro Rata Share of such Excess Cash Flow in such fiscal year. The purchase price in cash (the "Excess Cash Flow Purchase Price") of Notes to be purchased pursuant to the Excess Cash Flow Offer shall be equal to one hundred one percent (101%) 103% of the principal amount of the Notes to be purchasedthereof, plus accrued and unpaid interest thereon, if any, to the Excess Cash Flow Payment Date. Notice of an Excess Cash Flow Offer shall be given to Holders not less than 30 Business Days before the Excess Cash Flow Payment Date and shall be sent by first class mail, postage prepaid, to each Holder at his address appearing in the security register on the date of five Business Days prior to the date fixed of such notice. The Excess Cash Flow Offer is required to remain open for 20 Business Days and payment pursuant to the closing Excess Cash Flow Offer will be made on the Excess Cash Flow Payment Date. The Excess Cash Flow Offer shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the terms of the Excess Cash Flow Offer; provided. The Excess Cash Flow Offer shall also state: (i) that the Holder may tender Notes registered in the name of such Holder in the maximum principal amount of such Holder's Pro Rata Share of Excess Cash Flow and that any portion of a Note tendered must be tendered in an integral multiple of $1,000 principal amount; (ii) the place or places where Notes are to be surrendered for tender pursuant to the Excess Cash Flow Offer; (iii) that, -------- howeverunless the Company defaults in making such purchase, no such offer need be made by Issuer unless the portion of the aggregate principal amount of any Note tendered and accepted for purchase pursuant to the Excess Cash Flow Offer ------- Amount exceeds $2,000,000. Each shall, after the Excess Cash Flow Purchase Date, cease to accrue interest but that the remaining aggregate principal amount of any Note not tendered or tendered but not purchased by the Company pursuant to the Excess Cash Flow Offer shall continue to accrue interest at the same rate; (iv) that, on the Excess Cash Flow Purchase Date, the Excess Cash Flow Purchase Price will remain open become due and payable upon each Note accepted for payment pursuant to the Excess Cash Flow Offer; (v) that each Holder electing to tender a period of twenty (20) Business Days and no longer, unless a longer period is required by law (Note pursuant to the "Excess Cash Flow Offer Period"shall be required to surrender such Note at the place or places set forth in the Excess Cash Flow Offer prior to the close of business on the Excess Cash Flow Purchase Date (such Note being accompanied by a written instrument of transfer in the form provided in the form of Notes attached as Exhibit A hereto duly executed by the Holder thereof or his attorney duly authorized in writing). Promptly after ; (vi) that each Holder will be entitled to withdraw all or any portion of any Note tendered if the ----------------------------- termination Company (or its paying agent) receives, not later than the close of business on the expiration date of the Excess Cash Flow Offer PeriodOffer, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the Issuer will purchase aggregate principal amount of the Notes the Holder tendered, the certificate number of the Note the Holder tendered and mail a statement that such Holder is withdrawing all or a portion of his tender; and (vii) that, in the case of any Holder whose Note is tendered only in part, the Company shall execute, and the Trustee shall authenticate and deliver payment to the Holder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder, in the aggregate principal amount equal to and in exchange for the untendered portion of the aggregate principal amount of the Notes so tendered. (b) On the Excess Cash Flow Offer Amount Payment Date, the Company shall, to the extent lawful, (i) accept for the payment Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes beneficial interests under a Global Note properly tendered pursuant to the Excess Cash Flow Offer, (ii) deposit with the Paying Agent (by no later than 11:00 a.m. on such date) money sufficient to pay the Excess Cash Flow Purchase Price of all Notes or portions thereof or beneficial interests so tendered and (iii) deliver or cause to be delivered to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof tendered to the Company. The Paying Agent shall promptly (1) mail to each holder of Notes so accepted and (2) remit to the Depository for crediting to the respective accounts of the Holders under a Global Note of beneficial interest so accepted, payment in an amount equal to the purchase price for such Notes (which payment shall, in the case of the Holders of beneficial interests in a Global Note, be through the facilities of the Depository), and the Company shall execute and issue, and the Trustee shall promptly authenticate and mail to such holder, a new Note equal in principal amount to any untendered portion of the Notes surrendered and shall issue a Global Note equal in principal amount to any untendered portion of beneficial interest so surrendered; provided that each such new Note shall be issued in an original principal amount in denominations of $1,000 and integral multiples thereof. (c) If the Company or any Subsidiary thereof has issued any outstanding Indebtedness that is subordinated in right of payment to the Notes or Preferred Stock, and the Company or such Subsidiary is required to make an offer to purchase in respect of any excess cash flow for any fiscal year, the Company shall not consummate any such offer or distribution with respect to such subordinated Indebtedness until such time as the Company shall have paid the Excess Cash Flow Purchase Price in full to the holders of Notes that have accepted the Company's Excess Cash Flow Offer and shall otherwise have consummated the Excess Cash Flow Offer made to be purchased pursuant holders of the Notes. The Company will not issue Indebtedness that is subordinated in right of payment to the Notes or Preferred Stock with distribution provisions requiring the payment of such Indebtedness or Preferred Stock prior to making and consummating an Excess Cash Flow Offer may be reduced by under this Indenture. (d) Notwithstanding the principal foregoing: (i) the amount of Notes acquired by the Issuer through purchase or redemption (other than pursuant to a Change of Control Offer or an Amortization Offer) surrendered to the Trustee for cancellation. If the aggregate amount of Notes tendered pursuant to Excess Cash Flow included in any Excess Cash Flow Offer shall not exceed: (A) the amount that the Company is less than the permitted to use to repurchase Notes in such Excess Cash Flow Offer Amountpursuant to the Senior Note Indenture as in effect on the Issue Date; or (B) the amount that XxXxxxxxx is permitted to distribute to the Company pursuant to the note purchase agreement relating to XxXxxxxxx'x series of outstanding unsecured subordinated notes in the aggregate principal amount of $15 million (the "$15 million Note Purchase Agreement") and the note purchase agreement relating to XxXxxxxxx'x series of outstanding unsecured senior subordinated notes in the aggregate principal amount of $20.0 million (the "$20 million Note Purchase Agreement" together with the $15 million Note Purchase Agreement, the Issuer may"Note Purchase Agreements"), subject to each as in effect on the other provisions of this Indenture and Issue Date; and (ii) the Collateral Documents, use any remaining Excess Cash Flow for general corporate purposes. The Issuer shall not, and shall Company will not permit any of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer be required to make an Excess Cash Flow Offer or, for any fiscal year if the amount of such Excess Cash Flow Offer would be less than $5.0 million; provided that any amounts excluded from an Excess Cash Flow Offer pursuant to clause (i) or (ii) above shall be carried forward for purposes of determining whether an Excess Cash Flow Offer is maderequired with respect to subsequent fiscal years and the amount thereof. (e) To the extent an Excess Cash Flow Offer is not fully subscribed to by the Holders, the unsubscribed portion of such Excess Cash Flow may be retained by the Company and/or used for any purpose, subject to the covenants contained in the Indenture, and shall be excluded from the calculation of Excess Cash Flow for any subsequent period. (f) The Company will comply, to pay for the extent applicable, with the requirements of Section 14(e) of the Exchange Act and other applicable laws or regulations in connection with the purchase of the Notes tendered for purchasepursuant to this covenant. To the extent that the provisions of any applicable laws or regulations conflict with the provisions of the Indenture, the Company will comply with the applicable laws and regulations and shall not be deemed to have breached its obligations described in the Indenture by virtue thereof. (g) The Company's ability to make an Excess Cash Flow Offer is subject to compliance with the restricted payments covenants in the Senior Note Indenture and the Note Purchase Agreements, and no Default hereunder will occur on the Notes if the Company fails to make an Excess Cash Flow Offer in order to comply with these covenants.

Excess Cash Flow Offer. Within one hundred twenty If the Company has Excess Cash Flow for any fiscal year (120) commencing with fiscal 2001), the Company shall make an offer to purchase on a Business Day not later than 150 days after following the end of each such fiscal year, the Issuer will make an Offer to Purchase to from all Holders of Notes, up to a maximum principal amount (expressed as a multiple of $1,000) of Notes equal to (A) the "Noteholders' Pro Rata Share of 50% of such Excess Cash ----------- Flow Offer"in such fiscal year, minus (B) to purchase the maximum principal amount of Notes that is theretofore purchased by the Company in the open market and the principal amount of Notes theretofore redeemed by the Company pursuant to the Indenture and not theretofore credited against the Company's obligation to make an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) of Excess Cash Flow for such fiscal year (the "Excess Cash Flow Offer Amount"), at ----------------------------- for a prior fiscal year. The purchase price in cash equal to one hundred one percent (101%) of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to the date fixed for the closing of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the Excess Cash Flow Offer ------- Amount exceeds $2,000,000. Each Excess Cash Flow Offer will remain open for a period of twenty (20) Business Days and no longer, unless a longer period is required by law (the "Excess Cash Flow Offer Period"). Promptly after the ----------------------------- termination of the Excess Cash Flow Offer Period, the Issuer will purchase and mail or deliver payment for the Excess Cash Flow Offer Amount for the Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered pursuant to the Excess Cash Flow Offer. The principal amount of Notes to be purchased pursuant to an Excess Cash Flow Offer may shall be reduced by equal to 100% of the principal amount of Notes acquired by the Issuer through purchase or redemption (other than pursuant thereof, plus accrued and unpaid interest thereon, if any, to a Change of Control Offer or an Amortization Offer) surrendered to the Trustee for cancellation. If the aggregate amount of Notes tendered pursuant to any Excess Cash Flow Offer is less than the Excess Cash Flow Offer AmountPayment Date. Notwithstanding the foregoing, the Issuer may, subject to the other provisions of this Indenture and the Collateral Documents, use any remaining Excess Cash Flow for general corporate purposes. The Issuer shall not, and shall Company will not permit any of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer be required to make an Excess Cash Flow Offer or, for any fiscal year if the amount of such Excess Cash Flow Offer would be less than $5.0 million (which amount shall be carried forward for purposes of determining whether an Excess Cash Flow Offer is maderequired with respect to subsequent fiscal years). To the extent an Excess Cash Flow Offer is not fully subscribed to by Holders of the Notes, the unsubscribed portion of such Excess Cash Flow may be retained by the Company and/or used for any purpose, subject to pay the covenants contained in the Indenture, and shall be excluded from the calculation of Excess Cash Flow for the Notes tendered for purchaseany subsequent period.

Excess Cash Flow Offer. Within one hundred twenty (120a) days after If the end of each Company has Excess Cash Flow for any fiscal year, the Issuer will make an Offer to Purchase to all Holders year (the "“Relevant Fiscal Year”), commencing with the fiscal year ending on April 30, 2005, then the Company shall apply an amount (the “Excess Cash ----------- Flow Offer"Offer Amount”) equal to purchase the maximum principal amount 50% of Notes that is an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) of such Excess Cash Flow for such fiscal year period to make an offer to the Holders to repurchase all or a portion (the "Excess Cash Flow Offer Amount"), at ----------------------------- a purchase in integral multiples of $1,000) of their Notes with an aggregate repurchase price in cash equal to one hundred one percent (101%) of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to the date fixed for the closing of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the Excess Cash Flow Offer ------- Amount exceeds $2,000,000pursuant to and subject to the conditions in this Section 4.23 (an “Excess Cash Flow Offer”). Each Excess Cash Flow Offer will remain open for a period of twenty (20) Business Days and no longer, unless a longer period is required by law (the "”Excess Cash Flow Offer Period"”). Promptly after the ----------------------------- termination of the Excess Cash Flow Offer Period, the Issuer Company will purchase and mail or deliver payment for (up to the Excess Cash Flow Offer Amount Amount) for the Notes or portions thereof tendered, pro rata, rata (based on amounts tendered) or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered pursuant to the Excess Cash Flow Offer. (b) Within 90 days after the end of any Relevant Fiscal Year (or portion thereof) with respect to which the Company is required to make an Excess Cash Flow Offer pursuant to Section 4.23(a), the Company shall send, by registered first-class mail, an offer to each Holder, with a copy to the Trustee, which offer shall govern the terms of the Excess Cash Flow Offer. The principal amount Such offer shall state: (1) the purchase price; (2) the Excess Cash Flow Offer Period; (3) that the Company is making an Excess Cash Flow Offer; (4) that any Note not tendered will continue to accrue interest, and Additional Interest, if applicable; (5) that unless the Company defaults on the payment of the purchase price, any Notes accepted for payment pursuant to the Excess Cash Flow Offer will cease to accrue interest, and Additional Interest, if applicable, after the Excess Cash Flow Offer Period; (6) the repurchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed, other than as may be required by law (the “Excess Cash Flow Offer Payment Date”); and (7) the address of the Paying Agent and the procedures that a Holder of Notes must follow to be accept the Excess Cash Flow Offer or to withdraw such acceptance in accordance with this Section 4.23. (c) Upon receiving notice of the Excess Cash Flow Offer, Holders may elect to tender their Notes, in whole or in part, in integral multiples of $1,000 in exchange for cash. Holders electing to have a Note purchased pursuant to an Excess Cash Flow Offer may will be reduced by required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Excess Cash Flow Offer Payment Date. If only a portion of a Note is purchased pursuant to an Excess Cash Flow Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made). Notes (or portions thereof) purchased pursuant to an Excess Cash Flow Offer will be cancelled and cannot be reissued. (d) Promptly after the termination of the Excess Cash Flow Offer Period, the Company will, to the extent lawful: (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Excess Cash Flow Offer; (2) deposit with the Paying Agent in cash an amount equal to 100% of the principal amount (without premium), plus accrued but unpaid interest and Additional Interest, if any, thereon to the Excess Cash Flow Offer Payment Date in respect of all Notes acquired by or portions thereof so tendered; provided that the Issuer through purchase aggregate amount so deposited shall not exceed the Excess Cash Flow Offer Amount; and (3) deliver or redemption (other than pursuant cause to a Change of Control Offer or an Amortization Offer) surrendered be delivered to the Trustee for cancellationthe Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount at maturity of Notes or portions thereof being purchased by the Company. (e) With respect to each Excess Cash Flow Offer, the Company shall be entitled to reduce the applicable Excess Cash Flow Offer Amount with respect thereto by the aggregate repurchase price of any Notes theretofore repurchased by the Company in the open market (to the extent such amount has not previously reduced any Excess Cash Flow Offer Amount). If the aggregate amount repurchase price of Notes tendered pursuant to any Excess Cash Flow Offer is less than the applicable Excess Cash Flow Offer Amount, the Issuer Company may, subject to the other provisions of this Indenture and the Collateral DocumentsIndenture, use any remaining such Excess Cash Flow for general corporate purposesany other lawful purpose. (f) In each Excess Cash Flow Offer, the Company will be required to repurchase Notes validly tendered in response to such Excess Cash Flow Offer in accordance with the procedures (including proration in the event of oversubscription) set forth in this Section 4.23. The Issuer shall not, and shall Company will not permit any of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer be required to make an Excess Cash Flow Offer orrelating to any Relevant Fiscal Year if the Excess Cash Flow for such Relevant Fiscal Year is less than $2.0 million. (g) Notwithstanding the foregoing, if such the repurchase of Notes by the Company pursuant to any Excess Cash Flow Offer is madeshall not be required if it would breach any covenant under the Credit Agreement that prohibits the consummation of the applicable Excess Cash Flow Offer and shall be limited to amounts as provided under the Credit Agreement. (h) 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 and regulations are applicable in connection with the repurchase of Notes pursuant to an Excess Cash Flow Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.23, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to pay for the Notes tendered for purchasehave breached its obligations under this Section 4.23 by virtue thereof.

Excess Cash Flow Offer. Within one hundred twenty Not later than April 30th following any fiscal year in which there was Excess Cash Flow (120) days after the end of each fiscal yearan "Excess Cash Flow Offer Trigger Date"), the Issuer Issuers will make an Offer offer to Purchase to purchase from all Holders on a pro rata basis (the "Excess Cash ----------- Flow Offer") to purchase the maximum principal amount of Notes that is an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) of Excess Cash Flow for such fiscal year on a date (the "Excess Cash Flow Offer Payment Date") not less than 30 nor more than 45 days following the applicable Excess Cash Flow Offer Trigger Date, the aggregate principal amount of Notes that may be purchased with 50% of Excess Cash Flow (reduced by the Issuers' estimated expenses in making the Excess Cash Flow Offer, as determined in good faith by the Company's Board of Directors) (after giving effect to such reduction for expenses, each an "Excess Cash Flow Offer Amount"), ) at ----------------------------- a purchase price in cash equal to one hundred one percent (101%) 100% of the aggregate principal amount of the Notes to be purchased, plus accrued and unpaid interest and Additional Interest, if any, to the date fixed for the closing of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the purchase. The Issuers may at their election make an Excess Cash Flow Offer ------- Amount exceeds $2,000,000. Each prior to being obligated to do so and may defer any Excess Cash Flow Offer will remain open for a period of twenty until the sum of: (201) Business Days and no longer, unless a longer period is required by law (the "Excess Cash Flow Offer Period"). Promptly after the ----------------------------- termination of the Excess Cash Flow Offer Period, the Issuer will purchase and mail or deliver payment for the cumulative Excess Cash Flow Offer Amount for the Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the resulting from Excess Cash Flow Offer Amount from one or more fiscal years that has not been tendered, all Notes tendered applied pursuant to the Excess Cash Flow Offer. The principal amount of Notes to be purchased immediately preceding paragraph, and (2) the aggregate Net Proceeds Offer Amount resulting from one or more Asset Sales that has not been applied pursuant to Section 4.13, is equal to or in excess of $10.0 million, in which case the accumulation of such amount shall constitute an Excess Cash Flow Offer may Trigger Date (at which time, the entire unutilized Trigger Amount, and not just the amount in excess of $10.0 million, shall be reduced by the principal amount of Notes acquired by the Issuer through purchase or redemption (other than applied as required pursuant to a Change of Control Offer or an Amortization Offer) surrendered to the Trustee for cancellationimmediately preceding paragraph). If To the extent that the aggregate principal amount of Notes tendered pursuant to any such Excess Cash Flow Offer is less than the Excess Cash Flow Offer AmountAmount (or, in the Issuer may, subject event the Issuers elect to defer the other provisions of this Indenture and the Collateral Documents, use any remaining Excess Cash Flow Offer pursuant to the immediately preceding paragraph, the Trigger Amount), such deficiency shall be deemed to have been applied and the Issuers and their Restricted Subsidiaries may use such deficiency for general corporate purposespurposes or declare and pay a dividend in the amount of such deficiency to MFOC in accordance with the provisions of clause (7) of Section 4.10(b). The Issuer shall notUpon completion of such Excess Cash Flow Offer, the Excess Cash Flow Offer Amount will be reset to zero (or, in the event the Issuers elect to defer the Excess Cash Flow Offer pursuant to the immediately preceding paragraph, upon completion of such Excess Cash Flow Offer, the Excess Cash Flow Amount and shall not permit any Net Proceeds Amount under Section 4.13 will each be reset to zero). Each notice of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer to make an Excess Cash Flow Offer or, if such shall be mailed to the record Holders as shown on the register of Holders within 25 days following the Excess Cash Flow 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 Excess Cash Flow Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Excess Cash Flow Offer Amount, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered and with such adjustments as may be reasonably deemed appropriate by the Issuers so that only Notes in denominations of $1,000 or multiples thereof shall be purchased). An Excess Cash Flow Offer shall remain open for a period of 20 business days or such longer period as may be required by law. If only a portion of a Note is purchased pursuant to an Excess Cash Flow Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will made). Notes (or portions thereof) purchased pursuant to an Excess Cash Flow Offer will be cancelled and cannot be reissued. The Issuers 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 an Excess Cash Flow Offer. To the extent the provisions of any securities laws or regulations conflict with the provisions under this Section 4.12, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to pay for the Notes tendered for purchase.have breached their obligations under this Section 4.12 by virtue thereof

Excess Cash Flow Offer. Within one hundred twenty (120a) For each annual period ending December 31, commencing December 31, 2013, within 90 days after the end of each fiscal yearsuch annual period, the Issuer will make an Offer to Purchase to all Holders Company (or FEEC or the "applicable Restricted Subsidiary, as the case may be) shall apply the Excess Cash ----------- Flow Offer") Amount to repay Indebtedness and other Obligations under the Existing Credit Facility at 100% of its principal amount until all Indebtedness and other Obligations thereunder are repaid in full (any Excess Cash Flow Amount that is not applied to repay Indebtedness or other obligations under the Existing Credit Facility will constitute “Remaining Proceeds”), and thereafter shall offer to purchase the maximum such aggregate principal amount of Notes that is an ---------- integral multiple (in the entire amount of a Holder’s Notes (if the Remaining Proceeds equal or exceed such amount), or, if in part, in minimum amounts of $1,000 and integral multiples of $1.00 in excess thereof) that may be purchased with forty percent (40%) out of Excess Cash Flow for such fiscal year (the "Excess Cash Flow Offer Amount"), Remaining Proceeds at ----------------------------- a purchase price in cash equal to one hundred one percent Excess Cash Flow Offer Price. (101%b) Within 90 days after the end of any annual period ending December 31, commencing December 31, 2013, the Company will make an offer to the Holders to Purchase such aggregate principal amount of the Notes to be purchased, plus accrued and unpaid interest to the date fixed for the closing of the (each an “Excess Cash Flow Offer; provided”), -------- however, no such offer need that may be made by Issuer unless purchased with Excess Cash Flow at a purchase price in cash in an amount equal to the Excess Cash Flow Offer ------- Amount exceeds $2,000,000Price. Each The Company will commence an Excess Cash Flow Offer by mailing (or transmitting otherwise in accordance with the Applicable Procedures), the notice required pursuant to the terms of this Indenture. The Company will remain open for a period of twenty (20) Business Days and no longer, unless a longer period is be required by law (the "to purchase Notes validly tendered in response to an Excess Cash Flow Offer Period")in accordance with the procedures set forth in this Indenture and such notice. Promptly after If the ----------------------------- termination of the Excess Cash Flow Offer Period, the Issuer will purchase and mail or deliver payment for the Excess Cash Flow Offer Amount for the Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered pursuant to the Excess Cash Flow Offer. The aggregate principal amount of Notes to be purchased tendered pursuant to an Excess Cash Flow Offer may be reduced by exceeds the principal amount of Notes acquired by the Issuer through purchase or redemption (other than pursuant to a Change of Control Excess Cash Flow Offer or an Amortization Offer) surrendered to Amount, the Trustee for cancellationwill select the Notes in accordance with Section 3.02. If the aggregate amount of purchase price for Notes tendered pursuant to any an Excess Cash Flow Offer is less than the Excess Cash Flow Offer Amountapplicable Remaining Proceeds, the Issuer Company may, subject to the other provisions of this Indenture and the Collateral DocumentsIndenture, use any remaining Excess Cash Flow such Remaining Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. The Issuer shall not, and shall Company will not permit any of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer be required to make an Excess Cash Flow Offer orin any annual period if the Excess Cash Flow for such relevant annual period is less than $5.0 million. (c) Notwithstanding anything to the contrary in this Section 4.13, if such the Company will not be required to make an Excess Cash Flow Offer if a notice of redemption for all of the outstanding Notes has been given pursuant to Section 3.07, unless and until there is madea default in payment of the applicable redemption price, plus accrued and unpaid interest to pay for the Notes tendered for purchaseproposed date of redemption, or any conditions precedent set forth in such notice are not satisfied or waived by the redemption date specified in such notice.

Excess Cash Flow Offer. (a) Within one hundred twenty (120100) days after the end of each fiscal yearyear beginning with the fiscal year ending June 30, 2006, the Issuer will make an Offer to Purchase offer (an “Excess Cash Flow Offer”) to all Holders (the "Excess Cash ----------- Flow Offer") Holders, on a pro rata basis, to purchase the maximum principal amount at maturity of Notes that is an ---------- integral multiple for which the sum of $1,000 that may be purchased with forty percent (40%) 101% of Excess Cash Flow for such fiscal year (the "Excess Cash Flow Offer Amount"), at ----------------------------- a purchase price in cash equal to one hundred one percent (101%) of the principal amount at maturity of the Notes to be purchasedsuch Notes, plus accrued and unpaid interest and Additional Interest, if any, to the date fixed for the closing of purchase, is equal to 50% of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless from the previous fiscal year (the “Excess Cash Flow Offer ------- Amount exceeds $2,000,000. Each Excess Cash Flow Offer will remain open for a period of twenty (20) Business Days and no longer, unless a longer period is required by law (the "Excess Cash Flow Offer Period"Amount”). Promptly after the ----------------------------- termination of the Excess Cash Flow Offer Period, the Issuer will purchase and mail or deliver payment for the Excess Cash Flow Offer Amount for the Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes tendered pursuant to the Excess Cash Flow Offer. The principal amount of Notes to be purchased pursuant to an Excess Cash Flow Offer may be reduced by the principal amount of Notes acquired by the Issuer through purchase or redemption (other than pursuant to a Change of Control Offer or an Amortization Offer) surrendered to the Trustee for cancellation. If the aggregate amount paid by the Issuer to Holders of Notes tendered pursuant to any Excess Cash Flow Offer is less than the related Excess Cash Flow Offer Amount, the Issuer may, subject to the other provisions of this Indenture and the Collateral DocumentsIndenture, use any remaining Excess Cash Flow the amount of such difference for general corporate purposes. Notwithstanding the foregoing, for the purposes of calculating the Excess Cash Flow Offer Amount, the amount of Excess Cash Flow for any fiscal year shall not exceed an amount equal to (A) net cash provided by operating activities plus the net cash provided by investing activities, each as determined for such fiscal year for the Issuer and its Subsidiaries on a consolidated basis in accordance with GAAP, minus (B) the aggregate principal amount at maturity of the Notes purchased or redeemed by the Issuer during such fiscal year (excluding any purchases made pursuant to (i) the Excess Cash Flow Offer and (ii) any and all Net Proceeds Offers in connection with Assets Sales). (b) Each Excess Cash Flow Offer shall remain open for a period of twenty (20) Business Days from the date such notice is mailed, or such longer period is required by law (the last day of such period being the “Excess Cash Flow Payment Date”). The Issuer must send the Excess Cash Flow Offer, by registered first-class mail, to each Holder, with a copy to the Trustee. The notice to the Holders shall notcontain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Cash Flow Offer. Such notice shall state: (1) that the Excess Cash Flow Offer is being made pursuant to this Section 4.22; (2) the purchase price (including the amount of accrued interest and Additional Interest, if any) and the Excess Cash Flow Payment Date; (3) that any Note not tendered shall continue to accrue interest and Additional Interest, if any; (4) that, unless the Issuer defaults in making payment therefor, any Note accepted for payment pursuant to the Excess Cash Flow Offer shall cease to accrue interest, and Additional Interest, if any, after the Excess Cash Flow Payment; (5) that Holders electing to have a Note purchased pursuant to a Excess Cash Flow Offer shall not permit any be required to surrender the Note, with the form entitled “Option of its Restricted Subsidiaries to, create or suffer Holder to exist or become effective any restriction that would impair Elect Purchase” on the ability reverse of the Issuer Note completed, to make the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Excess Cash Flow Payment Date; (6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than five (5) Business Days prior to the Excess Cash Flow Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Notes purchased; and (7) that Holders whose Notes are purchased only in part shall be issued new Notes in a principal amount at maturity equal to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in an original principal amount at maturity of $1,000 or integral multiples thereof. (c) If only a portion of a Note is purchased pursuant to a Excess Cash Flow Offer, a new Note in a principal amount at maturity equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made). Notes (or portions thereof) purchased pursuant to an Excess Cash Flow Offer or, if such will be cancelled and cannot be reissued. If any of the Notes subject to the Excess Cash Flow Offer is madein the form of a Global Note, then the Issuer shall modify such notice to the extent necessary to comply with the procedures of the Depositary applicable to repurchases. (d) On or before the Excess Cash Flow Payment Date, the Issuer shall, to the extent lawful (i) accept for payment Notes or portions thereof properly tendered pursuant to the Excess Cash Flow Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay for the purchase price plus accrued interest and Additional Interest, if any, of all Notes or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount at maturity of Notes or portions thereof being purchased by the Issuer. Promptly following receipt of such Officers’ Certificate, the Paying Agent shall transmit in accordance with the procedures of the Depositary, if applicable, or mail to the Holders of Notes so tendered the purchase price for purchasesuch Notes and the Issuer shall promptly issue and the Trustee shall promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount at maturity to any unpurchased portion of the Notes surrendered; provided that each such new Note shall be in a principal amount at maturity of $1,000 or an integral multiple thereof. Any Notes not so accepted shall be promptly returned by the Issuer to the Holders thereof. (e) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Excess Cash Flow Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.22, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.22 by virtue thereof.

Excess Cash Flow Offer. Within one hundred twenty (120a) days after At or prior to each Excess Cash Flow Offer Trigger Date, the end Issuer will calculate the amount of each fiscal yearExcess Cash Flow and the Excess Cash Flow Offer Amount for the Excess Cash Flow Period with respect to such Excess Cash Flow Offer Trigger Date. Unless the Issuer has exercised its right to redeem all or a portion (equal to or greater than the Excess Cash Flow Offer Amount) of the Notes, including on a conditional basis (provided that, if the conditions are not satisfied within 30 days, the requirement to make an Excess Cash Flow Offer shall be reinstated), as described in Section 3.07, the Issuer will make an Offer to Purchase offer to all Holders (holders of the "Excess Cash ----------- Flow Offer") Notes to purchase the maximum principal amount of Notes that is an ---------- integral multiple of $1,000 that may be purchased with forty percent (40%) out of Excess Cash Flow for such fiscal year (the "Excess Cash Flow Offer Amount (each, an “Excess Cash Flow Offer”); provided that if the Issuer has repurchased and retired, otherwise retired or redeemed any Notes during the Excess Cash Flow Period not funded with the proceeds of long-term debt and except to the extent covered by clause (2)(e) or (f) of the definition of “Excess Cash Flow”, the principal amount of such Notes will reduce the Excess Cash Flow Offer Amount on a dollar-for-dollar basis (the “Reduction Amount"”). (b) For any Excess Cash Flow Period with respect to which the Issuer is required to make an Excess Cash Flow Offer, within 10 days after the relevant Excess Cash Flow Offer Trigger Date, the Issuer will provide a notice setting forth the Excess Cash Flow Offer to each holder at ----------------------------- the address appearing in the security register, with a copy to the Trustee, stating: (1) that an Excess Cash Flow Offer is being made, the maximum aggregate principal amount of Notes that the Issuer may be required to purchase in such offer, and that such holder has the right to require the Issuer to purchase such holders’ Notes (subject to proration) at a purchase price in cash equal to one hundred one percent (101%) 100% of the principal amount of the such Notes to be purchased, plus accrued and unpaid interest interest, if any, to, but not including, the date of purchase (subject to the right of holders of record on a record date fixed for to receive interest on the closing of relevant interest payment date) (the “Excess Cash Flow Payment”); (2) the repurchase date (which shall be no earlier than 20 Business Days after such notice is provided and no later than 60 days from the date such notice is provided), pursuant to the procedures required by this Indenture and described in such notice (the “Excess Cash Flow Payment Date”); and (3) the procedures determined by the Issuer, consistent with this Indenture, that a holder must follow in order to have its Notes repurchased. (c) On the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the Excess Cash Flow Offer ------- Amount exceeds $2,000,000. Each Excess Cash Flow Offer will remain open for a period of twenty (20) Business Days and no longer, unless a longer period is required by law (the "Excess Cash Flow Offer Period"). Promptly after the ----------------------------- termination of the Excess Cash Flow Offer PeriodPayment Date, the Issuer will purchase and mail or deliver will, to the extent lawful: (1) accept for payment for the Excess Cash Flow Offer Amount for the all Notes or portions thereof tendered, pro rata, or by such other method as may be required by law, or, if less than the Excess Cash Flow Offer Amount has been tendered, all Notes properly tendered pursuant to the Excess Cash Flow Offer. The Offer (subject to proration); (2) deposit with the paying agent an amount equal to the Excess Cash Flow Payment in respect of all Notes or portions of Notes so accepted for payment; and (3) deliver, or cause to be delivered by the Trustee, the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes to be or portions of Notes being purchased pursuant to an by the Issuer. (d) If the aggregate purchase price of the Notes tendered in connection with any Excess Cash Flow Offer may be reduced by exceeds the principal amount of Notes acquired by Excess Cash Flow Offer Amount, the Issuer through purchase or redemption (other than pursuant will select the Notes to be purchased on a Change pro rata basis but in denominations of Control Offer or an Amortization Offer) surrendered to the Trustee for cancellation$2,000 principal and integral multiples of $1,000 in excess thereof. If the aggregate amount purchase price of the Notes tendered pursuant to in connection with any Excess Cash Flow Offer is less than the Excess Cash Flow Offer AmountAmount allotted to their purchase, the Issuer may, subject shall be permitted to use the other provisions portion of this Indenture and the Collateral Documents, use any remaining Excess Cash Flow for general corporate purposes. The Issuer shall not, and shall Amount that is not permit any applied to the purchase of its Restricted Subsidiaries to, create or suffer to exist or become effective any restriction that would impair the ability of the Issuer to make an Excess Cash Flow Offer or, if notes in connection with such Excess Cash Flow Offer is madefor any purpose not otherwise prohibited by this Indenture. (e) The Issuer 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 an Excess Cash Flow Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to pay for the Notes tendered for purchasehave breached its obligations described in this Indenture by virtue thereof.

Excess Cash Flow Offer. Within one hundred twenty (120) days after On the 45th day following the end of each fiscal yearquarter, commencing with the quarter ended June 30, 2004, the Issuer Parent Guarantor shall calculate its Excess Cash Flow for the most recently ended fiscal quarter, certify to the Trustee in writing the calculations to compute such Excess Cash Flow, and if the Parent Guarantor has Excess Cash Flow of at least $1,000,000, the Company will make an Offer to Purchase to all Holders offer (the an "Excess Cash ----------- Flow Offer") to purchase Notes at 100% of the maximum aggregate principal amount thereof, plus accrued interest, if any, to the date of purchase; provided that the amount required to be paid by the Company to repurchase such Notes that shall be limited to an amount equal to 50% of such Excess Cash Flow. The Company must commence its Excess Cash Flow Offer not later than the date on which the certificate computing the Excess Cash Flow is an ---------- integral multiple delivered to the Trustee. If the aggregate purchase price for the Notes (exclusive of $1,000 that interest) tendered pursuant to such Excess Cash 58 66 Flow Offer is less than the Excess Cash Flow, then the Parent Guarantor and the Restricted Subsidiaries may be purchased with forty percent (40%) of use the remaining Excess Cash Flow for such fiscal year (general corporate purposes not prohibited by the "Excess Cash Flow Offer Amount"), at ----------------------------- a purchase price in cash equal to one hundred one percent (101%) terms of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to the date fixed for the closing of the Excess Cash Flow Offer; provided, -------- however, no such offer need be made by Issuer unless the Excess Cash Flow Offer ------- Amount exceeds $2,000,000this Indenture. Each Excess Cash Flow Offer will shall remain open for a period of twenty (20) 20 Business Days and no longerDays, unless a longer period is required by law (the "Excess Cash Flow Offer Period"). Promptly after the ----------------------------- termination of the Excess Cash Flow Offer PeriodPeriod (the "Excess Cash Flow Payment Date"), the Issuer will Company shall purchase and mail or deliver payment for the Excess Cash Flow Offer Amount for the Notes or portions thereof tendered, tendered pro rata, rata or by such other method as may be required by law. If an Excess Cash Flow Offer is required by the terms of this Indenture, orthe Company shall commence such offer by mailing to the Trustee and each Holder, if less than at such Holder's last registered address, a notice, which shall govern the terms of the Excess Cash Flow Offer Amount has been tendered, and shall state: (1) that the Excess Cash Flow Offer is being made pursuant to this covenant "Excess Cash Flow Offer," the principal amount of Notes which shall be accepted for payment and that all Notes validly tendered for which the Holders thereof have requested prepayment shall be accepted for payment on a pro rata basis (or by such other method as may be required by law). (2) the purchase price and the date of purchase; (3) that any Notes not tendered or accepted for payment pursuant to the Excess Cash Flow Offer. The principal amount Offer shall continue to accrue interest; (4) that, unless the Company defaults in the payment of the purchase price with respect to any Notes tendered, Notes accepted for payment pursuant to be the Excess Cash Flow Offer shall cease to accrue interest after the Excess Cash Flow Payment Date; (5) that Holders electing to have Notes purchased pursuant to an Excess Cash Flow Offer may shall be reduced by required to surrender their Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Company prior to the close of business on the third Business Day immediately preceding the Excess Cash Flow Payment Date; (6) that Holders shall be entitled to withdraw their election if the Company receives, not later than the close of business on the second Business Day preceding the Excess Cash Flow Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes acquired by the Issuer through Holder delivered for purchase or redemption and a statement that such Holder is withdrawing his election to have such Notes purchased; (other than pursuant to a Change of Control Offer or an Amortization Offer7) surrendered to the Trustee for cancellation. If that if the aggregate amount purchase price for the Notes (exclusive of Notes interest) tendered pursuant to any the Excess Cash Flow Offer is less than the Excess Cash Flow Offer AmountFlow, the Issuer may, subject to Parent Guarantor and its Restricted Subsidiaries may use the other provisions of this Indenture and the Collateral Documents, use any remaining Excess Cash Flow for general corporate purposespurposes not prohibited by the terms of this Indenture; (8) that Holders whose Notes are purchased only in part shall be issued Notes representing the unpurchased portion of the Notes surrendered, provided that each Note purchased and each new Note issued shall be in principal amount of $1,000 or whole multiples thereof; and (9) the instructions that Holders must follow in order to tender their Notes. On or before the Excess Cash Flow Payment Date, the Company shall (i) accept for payment, on a pro rata basis to the extent necessary (unless some other method is required by law), the Notes or portions thereof tendered pursuant to the Excess Cash Flow Offer, (ii) deposit with the Payment Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted and (iii) deliver to the Trustee the Notes so accepted, together with an Officers' Certificate stating that the Notes or portions thereof tendered to the Company are accepted for payment. The Issuer Paying Agent shall notpromptly mail to each Holder of Notes so accepted payment in an amount equal to the purchase price of such Notes, including accrued and unpaid interest, and the Company shall not permit any of its Restricted Subsidiaries toissue new Notes, create or suffer and the Trustee shall promptly authenticate and mail such new Notes to exist or become effective any restriction that would impair such Holders, in a principal amount equal to the ability unpurchased portion of the Issuer to Note surrendered. The Company shall make an a public announcement of the results of the Excess Cash Flow Offer oras soon as practicable after the Excess Cash Flow Payment Date. For the purposes of this covenant, if such the Trustee shall act as the Paying Agent. Each Excess Cash Flow Offer is madeshall be conducted in compliance with all applicable laws, including without limitation, Regulation 14E of the Exchange Act and the rules thereunder and all other applicable federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.19, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to pay for the Notes tendered for purchasehave breached its obligations under this Section 4.19 by virtue thereof.