repay in full all such Senior Indebtedness and repay
such Senior Indebtedness of each lender or holder who has accepted such offer or
(ii) obtain the requisite consent under such Senior Indebtedness to permit the
repurchase of the Notes as provided for in Section 4.09(c).
(e)
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in a manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.09 and such third party purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.10.
OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
(A)
IN THE EVENT THAT, PURSUANT TO SECTION 5.05, THE COMPANY SHALL BE
REQUIRED TO COMMENCE AN OFFER TO ALL HOLDERS TO PURCHASE NOTES (AN "ASSET SALE
OFFER"), IT SHALL FOLLOW THE PROCEDURES SPECIFIED IN THIS SECTION 4.10.
EACH
ASSET SALE OFFER SHALL REMAIN OPEN FOR NOT LESS THAN TEN (10) BUSINESS DAYS NOR
MORE THAN SIXTY (60) DAYS IMMEDIATELY FOLLOWING ITS COMMENCEMENT, EXCEPT TO THE
EXTENT THAT A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW (THE "OFFER PERIOD").
39
(B)
UPON THE COMMENCEMENT OF AN ASSET SALE OFFER, THE COMPANY SHALL
SEND, BY FIRST CLASS MAIL, A NOTICE TO EACH OF THE HOLDERS WHICH SHALL CONTAIN
ALL INSTRUCTIONS AND MATERIALS NECESSARY TO ENABLE SUCH HOLDERS TO TENDER NOTES
PURSUANT TO THE ASSET SALE OFFER.
THE ASSET SALE OFFER SHALL BE MADE TO ALL
HOLDERS.
THE NOTICE, WHICH SHALL GOVERN THE TERMS OF THE ASSET SALE OFFER,
SHALL STATE:
(I)
THAT THE ASSET SALE OFFER IS BEING MADE PURSUANT TO THIS SECTION
4.10 AND SECTION 5.05 AND THE LENGTH OF TIME THE ASSET SALE OFFER SHALL REMAIN
OPEN;
(II)
THE OFFER AMOUNT AND THE PURCHASE DATE;
(III)
THAT HOLDERS ELECTING TO HAVE A NOTE PURCHASED PURSUANT TO ANY
ASSET SALE OFFER SHALL BE REQUIRED TO SURRENDER THE NOTE, WITH THE FORM ENTITLED
"OPTION OF HOLDER TO ELECT PURCHASE" ON THE REVERSE OF THE NOTE COMPLETED TO THE
COMPANY AT THE ADDRESS SPECIFIED IN THE NOTICE AT LEAST THREE BUSINESS DAYS
BEFORE THE PURCHASE DATE;
(IV)
THAT HOLDERS SHALL BE ENTITLED TO WITHDRAW THEIR ELECTION IF THE
COMPANY RECEIVES, NOT LATER THAN THE SECOND BUSINESS DAY PRIOR TO THE EXPIRATION
OF THE OFFER PERIOD, A FACSIMILE TRANSMISSION OR LETTER SETTING FORTH THE NAME
OF THE HOLDER, THE PRINCIPAL AMOUNT OF THE NOTE THE HOLDER DELIVERED FOR
PURCHASE AND A STATEMENT THAT SUCH HOLDER IS WITHDRAWING HIS ELECTION TO HAVE
SUCH NOTE PURCHASED; AND
(V)
OTHER INFORMATION REQUIRED TO BE INCLUDED PURSUANT TO SECTION
3.03.
(C)
ON OR BEFORE THE BUSINESS DAY IMMEDIATELY AFTER THE TERMINATION OF
THE OFFER PERIOD (THE "PURCHASE DATE"), THE COMPANY SHALL, TO THE EXTENT LAWFUL,
ACCEPT FOR PAYMENT, ON A PRO RATA BASIS TO THE EXTENT NECESSARY, NOTES OR
PORTIONS THEREOF TENDERED PURSUANT TO THE ASSET SALE OFFER WITH AN ACCRETED
VALUE EQUAL TO THE