Common use of Asset Sale Clause in Contracts

Asset Sale. The Company and the Guarantors shall not, and neither the Company nor the Guarantors shall permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, lease, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Guarantor or a Subsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary of the Company, whether by the Company or one of its Subsidiaries or through the issuance, sale or transfer of Equity Interests by a Subsidiary of the Company, and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless (l)(a) the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied within 365 days after the date of such Asset Sale, to the extent not applied in accordance with paragraph (b) below, to the (i) optional redemption of the Notes in accordance with the terms of the Indenture and other Indebtedness of the Company ranking on a parity with the Notes and with similar provisions requiring the Company to redeem such Indebtedness with the proceeds from such Asset Sale, pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding or (ii) repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment, made within 335 days of such Asset Sale or (b) within 365 days following such Asset Sale, the Asset Sale Offer Amount is (i) invested in fixed assets and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Guarantor in a Related Business) which in the good faith reasonable judgment of the Company's Board of Directors will immediately constitute or be a part of a Related Business of the Company or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (ii) used to retire Purchase Money Indebtedness secured by the asset that was the subject of the Asset Sale or Senior Debt, the terms of which require retirement upon such Asset Sale, on a pro rata basis, and to permanently reduce (in the case of Senior Debt that is not such Purchase Money Indebtedness) the amount of such Senior Debt outstanding on the Issue Date or permitted pursuant to paragraphs (a) and (b) of Section 4.11 (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), except that, in the case of each of the provisions of clauses (a) and (b), only proceeds from an Asset Sale of assets or capital stock of a Foreign Subsidiary may be invested in or used to retire Indebtedness of a Foreign Subsidiary; (2) at least 85% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, (3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such Asset Sale, and (4) the Company's Board of Directors determines in good faith that the Company or such Subsidiary receives, as applicable, fair market value for such Asset Sale. An acquisition of Notes pursuant to an Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as set forth in 1(a)(i) or 1(b) above (the "Excess Proceeds") exceed $10,000,000 and that each Asset Sale Offer shall remain open for 20 Business Days or such longer period as may be required by law following its commencement (the "Asset Sale Offer Period"). Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by the Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.

Asset Sale. The Subject to certain exceptions set forth in the Indenture, the Company and the Guarantors shall not, and neither the Company nor the Guarantors shall not permit any of their respective the Company's Subsidiaries to, in one or a series of related transactions, convey, sell, lease, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Guarantor or a Subsidiary or Unrestricted Subsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiaries, whether by the Company or one of its Subsidiaries or Unrestricted Subsidiaries or through the issuance, sale or transfer of Equity Interests by a Subsidiary one of the Company, 's Subsidiaries or Unrestricted Subsidiaries and including any sale and sale-leaseback transaction (any of the foregoing, an "Asset Sale"), unless unless, with respect to any Asset Sale or related series of Asset Sales involving securities, property or assets with an aggregate fair market value in excess of $5,000,000 (l)(aan Asset Sale (including a series of related Asset Sales) of less than $5,000,000 shall not be subject to this clause (b)), (a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, and (b) the Company's Board of Directors determines in good faith that the Company will be receiving or such Subsidiary will be receiving, as applicable, fair market value for such Asset Sale. Solely for purposes of the preceding sentence, "cash and Cash Equivalents" shall also include, (i) Purchase Money Indebtedness secured solely by the assets sold and assumed by a transferee; provided, that the Company and its Subsidiaries are fully released from obligations in connection therewith, (ii) assets for use in a Related Business or Equity Interests of a Person that becomes a Guarantor which is primarily engaged in a Related Business, (iii) Indebtedness incurred under the Credit Agreement that is assumed by a transferee; provided that the Company and its Subsidiaries are fully released from obligations in connection with the amounts assumed and the assumed Indebtedness permanently reduced the Indebtedness under the Credit Agreement (and in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount), (iv) property that within 30 days of such Asset Sale is converted into cash or Cash Equivalents; provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received and (v) TMS Indebtedness; provided that the Company and its Subsidiaries are fully released from obligations in connection with the amounts assumed. Within 360 days following such Asset Sale, Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied shall be: (a) used (i) to retire Purchase Money Indebtedness secured by the asset which was the subject of the Asset Sale; or (ii) to retire and permanently reduce Indebtedness incurred under the Credit Agreement; provided, that in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount; or (b) used to make (i) capital expenditures or (ii) investments in assets and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Person in a Related Business that becomes a Guarantor) which in the good faith reasonable judgment of the Company's Board of Directors will immediately constitute or be a part of a Related Business of the Company or such Guarantor (if it continues to be a Guarantor) immediately following such transaction; or the Company shall, within 365 such 360-day period, enter into a legally binding agreement to apply such Net Cash Proceeds as described in this clause (b) within six months after such agreement is entered into and apply such Net Cash Proceeds in accordance with the provisions of this clause (b); provided, that if such agreement terminates the Company shall have until the later of (i) 90 days after the date of such Asset Sale, to the extent not applied in accordance with paragraph (b) below, to the (i) optional redemption of the Notes in accordance with the terms of the Indenture termination and other Indebtedness of the Company ranking on a parity with the Notes and with similar provisions requiring the Company to redeem such Indebtedness with the proceeds from such Asset Sale, pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding or (ii) repurchase 360 days after the date of the Notes Asset Sale resulting in such Net Cash Proceeds to effect such application. The accumulated Net Cash Proceeds from Asset Sales and such from any Event of Loss not applied as set forth in the preceding paragraph shall constitute "Excess Proceeds." Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest or use for general corporate purposes (other than Restricted Payments that are not solely Restricted Investments) the Net Cash Proceeds in any manner that is not prohibited by the Indenture. When the Excess Proceeds equal or exceed $10,000,000, within 10 Business Days the Company shall offer to repurchase the Notes, together with any other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (), pro rata in proportion to the respective principal amounts of such Indebtedness (or accreted values in the case of Indebtedness issued with an original issue discount) of and the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment, made within 335 days of such Asset Sale or (b) within 365 days following such Asset Sale, the Asset Sale Offer Amount is (i) invested in fixed assets and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Guarantor in a Related Business) which in the good faith reasonable judgment of the Company's Board of Directors will immediately constitute or be a part of a Related Business of the Company or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (ii) used to retire Purchase Money Indebtedness secured by the asset that was the subject of the Asset Sale or Senior Debt, the terms of which require retirement upon such Asset Sale, on a pro rata basis, and to permanently reduce (in the case of Senior Debt that is not such Purchase Money Indebtedness) the amount of such Senior Debt outstanding on the Issue Date or permitted pursuant to paragraphs (a) and (b) of Section 4.11 (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), except that, in the case of each of the provisions of clauses (a) and (b), only proceeds from an Asset Sale of assets or capital stock of a Foreign Subsidiary may be invested in or used to retire Indebtedness of a Foreign Subsidiary; (2) at least 85% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, (3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such Asset Sale, and (4) the Company's Board of Directors determines in good faith that the Company or such Subsidiary receives, as applicable, fair market value for such Asset Sale. An acquisition of Notes pursuant to an Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as set forth in 1(a)(i) or 1(b) above (the "Excess Proceeds") exceed $10,000,000 and that each The Asset Sale Offer shall remain open for at least 20 Business Days or such longer period as may be required by law following its commencement (the "Asset Sale Offer Period"). Upon expiration of the Asset Sale Offer Period, the Company shall apply an amount equal to the Excess Proceeds (the "Asset Sale Offer Amount Amount") plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by the Indenture and following Indenture. Following the consummation of each Asset Sale Offer Offer, the Excess Proceeds amount shall be reset to zero.

Asset Sale. The Company and the Guarantors shall not, and neither the Company nor the Guarantors shall not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactionsconsummate any Asset Sale, convey, sell, lease, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation unless (in i) the case of a Guarantor or a Subsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary of the Company, whether consideration received by the Company or one of its Subsidiaries or through such Restricted Subsidiary is at least equal to the issuance, sale or transfer of Equity Interests by a Subsidiary fair market value of the Company, assets sold or disposed of and including any sale and leaseback transaction (any ii) at least 75% of the foregoing, an "Asset Sale"consideration received consists of cash or Temporary Cash Investments or the assumption of Indebtedness of the Company or any Restricted Subsidiary (other than Indebtedness to the Company or any Restricted Subsidiary), unless (l)(a) PROVIDED that the Company or such Restricted Subsidiary is irrevocably and unconditionally released from all liability under such Indebtedness. Within twelve months after the receipt of any Net Cash Proceeds therefrom from one or more Asset Sales occurring on or after the Closing Date, the Company shall or shall cause the relevant Restricted Subsidiary to: (i) (A) apply an amount equal to such Net Cash Proceeds to permanently repay Senior Indebtedness of the "Asset Sale Offer Amount"Company or any Subsidiary Guarantor or Indebtedness of any other Restricted Subsidiary, in each case owing to a Person other than the Company or any of its Restricted Subsidiaries; or (B) are invest an equal amount, or the amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within 365 days 12 months after the date of such Asset Saleagreement), in property or assets (other than current assets) of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the 12-month period referred to in clause (i)(B)) such excess Net Cash Proceeds (to the extent not applied pursuant to clause (i)) as provided in accordance with the following paragraph of this paragraph 8(b). The amount of such excess Net Cash Proceeds required to be applied (bor to be committed to be applied) below, to the during such 12-month period as set forth in clause (i) optional redemption of the Notes in accordance with preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds." If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this paragraph 8(b) totals at least $10.0 million, the Company must commence, not later than the fifteenth Business Day of such month, and consummate an Offer to Purchase from the Holders (and if required by the terms of any Pari Passu Indebtedness, from the Indenture and other Indebtedness holders of the Company ranking such Pari Passu Indebtedness) on a parity with the Notes and with similar provisions requiring the Company to redeem such Indebtedness with the proceeds from such Asset Sale, pro rata in proportion basis an aggregate principal amount of Notes (and Pari Passu Indebtedness) equal to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and Excess Proceeds on such other Indebtedness then outstanding or (ii) repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable lawdate, if any) (pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of equal to 100% of the principal amount (or accreted value thereof, plus, in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with each case, accrued and unpaid interest and Liquidated DamagesAdditional or Special Interest, if any, to the date Payment Date. If the aggregate principal amount of payment, made within 335 days Notes and any such Pari Passu Indebtedness tendered by holders thereof exceeds the amount of such Asset Sale or (b) within 365 days following such Asset SaleExcess Proceeds, the Asset Sale Offer Amount is (i) invested in fixed assets Notes and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Guarantor in a Related Business) which in the good faith reasonable judgment of the Company's Board of Directors will immediately constitute or Pari Passu Indebtedness shall be a part of a Related Business of the Company or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (ii) used to retire Purchase Money Indebtedness secured by the asset that was the subject of the Asset Sale or Senior Debt, the terms of which require retirement upon such Asset Sale, purchased on a pro rata basis. Upon the completion of any such Offers to Purchase, and to permanently reduce (in the case regardless of Senior Debt that is not such Purchase Money Indebtedness) the amount of such Senior Debt outstanding on the Issue Date or permitted pursuant to paragraphs (a) and (b) of Section 4.11 (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), except that, in the case of each of the provisions of clauses (a) and (b), only proceeds from an Asset Sale of assets or capital stock of a Foreign Subsidiary may be invested in or used to retire Indebtedness of a Foreign Subsidiary; (2) at least 85% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, (3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such Asset Sale, and (4) the Company's Board of Directors determines in good faith that the Company or such Subsidiary receives, as applicable, fair market value for such Asset Sale. An acquisition of Notes pursuant to an Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as set forth in 1(a)(i) or 1(b) above (the "Excess Proceeds") exceed $10,000,000 and that each Asset Sale Offer shall remain open for 20 Business Days or such longer period as may be required by law following its commencement (the "Asset Sale Offer Period"). Upon expiration of the Asset Sale Offer Periodvalidly tendered, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by the Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.

Asset Sale. The Company and the Guarantors shall will not, and neither the Company nor the Guarantors shall will not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactionsconsummate any Asset Sale, convey, sell, lease, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation unless (in i) the case of a Guarantor or a Subsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary of the Company, whether consider- ation received by the Company or one of its Subsidiaries or through such Restricted Subsidiary is at least equal to the issuance, sale or transfer of Equity Interests by a Subsidiary fair market value of the Company, assets sold or disposed of and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless (l)(a) the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied within 365 days after the date of such Asset Sale, to the extent not applied in accordance with paragraph (b) below, to the (i) optional redemption of the Notes in accordance with the terms of the Indenture and other Indebtedness of the Company ranking on a parity with the Notes and with similar provisions requiring the Company to redeem such Indebtedness with the proceeds from such Asset Sale, pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding or (ii) repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment, made within 335 days of such Asset Sale or (b) within 365 days following such Asset Sale, the Asset Sale Offer Amount is (i) invested in fixed assets and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Guarantor in a Related Business) which in the good faith reasonable judgment of the Company's Board of Directors will immediately constitute or be a part of a Related Business of the Company or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (ii) used to retire Purchase Money Indebtedness secured by the asset that was the subject of the Asset Sale or Senior Debt, the terms of which require retirement upon such Asset Sale, on a pro rata basis, and to permanently reduce (in the case of Senior Debt that is not such Purchase Money Indebtedness) the amount of such Senior Debt outstanding on the Issue Date or permitted pursuant to paragraphs (a) and (b) of Section 4.11 (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), except that, in the case of each of the provisions of clauses (a) and (b), only proceeds from an Asset Sale of assets or capital stock of a Foreign Subsidiary may be invested in or used to retire Indebtedness of a Foreign Subsidiary; (2) at least 85% of the total consideration for (excluding contingent liabilities assumed by the transferee of any such Asset Sale or series of related Asset Sales assets) received consists of cash or Temporary Cash EquivalentsInvestments or the assumption of Senior Indebtedness of the Company or a Subsidiary Guarantor, (3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such Asset Sale, and (4) the Company's Board of Directors determines in good faith provided that the Company or such Restricted Subsidiary receives, as applicable, fair market value for is irrevocably released from all liability under such Asset SaleIndebtedness. An acquisition of Notes pursuant In the event and to an Asset Sale Offer may be deferred until the accumulated extent that the Net Cash Proceeds received by the Company or any of its Restricted Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in any period of 12 consecutive months exceed 10% of Adjusted Consolidated Net Tangible Assets (determined as of the date closest to the commencement of such 12-month period for which a consolidated balance sheet of the Company and its Subsidiaries has been filed with the Commission or provided to the Holders pursuant to Section 4.03 of the Indenture), then the Company shall or shall cause the relevant Restricted Subsidiary to (i) within 12 months after the date Net Cash Proceeds so received exceed 10% of Adjusted Consolidated Net Tangible Assets (A) apply an amount equal to such excess Net Cash Proceeds to permanently repay Senior Indebtedness of the Company or a Subsidiary Guarantor or (B) invest an equal amount, or the amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within 12 months after the date of such agreement), in property or assets (other than current assets) of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the 12-month period referred to in clause (i)) such excess Net Cash Proceeds (to the extent not applied pursuant to clause (i)) as provided in the following paragraph of Section 4.15 of the Indenture. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 12-month period as set forth in 1(a)(iclause (i) or 1(b) above (of the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds") exceed $10,000,000 and that each Asset Sale Offer shall remain open for 20 Business Days or such longer period ." If, as may be required by law following its commencement (the "Asset Sale Offer Period"). Upon expiration of the Asset Sale first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Offer Periodto Purchase pursuant to this covenant totals at least $5,000,000, the Company shall apply must commence, not later than the Asset Sale fifteenth Business Day of such month, an Offer Amount plus to Purchase to the Holders of the Notes and, to the extent required by the terms of any Pari Passu Indebtedness, an Offer to Purchase to all holders of such Pari Passu Indebtedness, the maximum principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price equal to 100% of the principal amount thereof, plus, in each case, accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, to the purchase Payment Date. If the aggreage principal amount of all Notes and any such Pari Passu Indebtedness properly tendered in accordance with by holders thereof exceeds the provisions hereof (amount of Excess Proceeds, the Notes and Pari Passu Indebtedness shall be purchased on a pro rata basis if basis. Upon the Asset Sale Offer Amount is insufficient completion of any such Offers to purchase all Indebtedness so tendered) at Purchase, the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by the Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to at zero.

Asset Sale. The Company and the Guarantors shall not, and neither shall not permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i) the Company nor or such Restricted Subsidiary receives consideration at least equal to the Guarantors shall permit Fair Market Value of the assets sold or disposed of and (ii) at least 75% of the consideration (excluding contingent liabilities assumed by the transferee of such assets) received consists of cash or Temporary Cash Investments or the assumption of Senior Indebtedness of the Company or a Subsidiary Guarantor, provided that the Company or such Restricted Subsidiary is irrevocably released from all liability under such Indebtedness. In the event and to the extent that the Company or any of their respective its Restricted Subsidiaries to, in receive the Net Cash Proceeds from one or a series of related transactionsmore Asset Sales, convey, sell, lease, transfer, assign then the Company shall or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation shall cause the relevant Restricted Subsidiary to (i) within 12 months after the date Net Cash Proceeds so received (A) apply an amount equal to such excess Net Cash Proceeds to permanently repay (which in the case of the revolving credit facility is accompanied by a Guarantor corresponding permanent commitment reduction) Senior Indebtedness of the Company or a Subsidiary of Guarantor or (B) invest an equal amount, or the Company), and including any sale amount not so applied pursuant to clause (A) (or other transfer or issuance of any Equity Interests of any Subsidiary of the Company, whether by the Company or one of its Subsidiaries or through the issuance, sale or transfer of Equity Interests by enter into a Subsidiary of the Company, and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless (l)(a) the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied definitive agreement committing to so invest within 365 days 12 months after the date of such Asset Saleagreement), in property or assets (other than current assets) of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the 12-month period referred to in clause (i) such excess Net Cash Proceeds (to the extent not applied pursuant to clause (i)) as provided in accordance with the following paragraph of Section 4.14 of the Indenture. The amount of such excess Net Cash Proceeds required to be applied (bor to be committed to be applied) belowduring such 12-month period as set forth in clause (i) of the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds." If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this Section 4.14 totals at least $5,000,000, the Company must commence, not later than the fifteenth Business Day of such month, an Offer to Purchase to the Holders of the Notes and, to the (i) optional redemption of the Notes in accordance with extent required by the terms of any Pari Passu Indebtedness, an Offer to Purchase to all holders of such Pari Passu Indebtedness, the Indenture maximum principal amount of Notes and other any such Pari Passu Indebtedness that may be purchased out of the Company ranking on a parity with the Notes and with similar provisions requiring the Company to redeem such Indebtedness with the proceeds from such Asset SaleExcess Proceeds, pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding or (ii) repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make at an offer price equal to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value thereof, plus, in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with each case, accrued and unpaid interest and Liquidated DamagesAdditional Interest, if any, to the date Payment Date. If the aggregate principal amount of payment, made within 335 days Notes and any such Pari Passu Indebtedness tendered by holders thereof exceeds the amount of such Asset Sale or (b) within 365 days following such Asset SaleExcess Proceeds, the Asset Sale Offer Amount is (i) invested in fixed assets Notes and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Guarantor in a Related Business) which in the good faith reasonable judgment of the Company's Board of Directors will immediately constitute or Pari Passu Indebtedness shall be a part of a Related Business of the Company or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (ii) used to retire Purchase Money Indebtedness secured by the asset that was the subject of the Asset Sale or Senior Debt, the terms of which require retirement upon such Asset Sale, purchased on a pro rata basis. Upon the completion of any such Offers to Purchase, and to permanently reduce (in the case of Senior Debt that is not such Purchase Money Indebtedness) the amount of such Senior Debt outstanding on the Issue Date or permitted pursuant to paragraphs (a) and (b) of Section 4.11 (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), except that, in the case of each of the provisions of clauses (a) and (b), only proceeds from an Asset Sale of assets or capital stock of a Foreign Subsidiary may be invested in or used to retire Indebtedness of a Foreign Subsidiary; (2) at least 85% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, (3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such Asset Sale, and (4) the Company's Board of Directors determines in good faith that the Company or such Subsidiary receives, as applicable, fair market value for such Asset Sale. An acquisition of Notes pursuant to an Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as set forth in 1(a)(i) or 1(b) above (the "Excess Proceeds") exceed $10,000,000 and that each Asset Sale Offer shall remain open for 20 Business Days or such longer period as may be required by law following its commencement (the "Asset Sale Offer Period"). Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by the Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to at zero.