Common use of Limitation on Certain Asset Sales Clause in Contracts

Limitation on Certain Asset Sales. Neither the Issuers nor any of their Subsidiaries will consummate or permit, directly or indirectly, any Asset Sale, unless (i) such Issuers or such Subsidiary, as the case may be, receives consideration at the time of each such Asset Sale at least equal to the fair market value of the Property subject to such Asset Sale, (ii) in the case of all Asset Sales, at least 75% of the consideration received by such Issuer or such Subsidiary is in the form of cash or Temporary Cash Investments, and (iii) no Default or Event of Default shall have occurred and be continuing on the date of such proposed Asset Sale or would result as a consequence of such Asset Sale; provided that (a) the amount of any notes or other obligations received by such Issuer or such Subsidiary from such transferee that are converted by such Issuer or such Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of such Asset Sale and (b) any Designated Noncash Consideration received by such Issuer or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (b) that is at that time outstanding, less the amount of cash or Temporary Cash Investments received by Issuers or any of their Subsidiaries in connection with a subsequent sale of any such Designated Noncash Consideration, not exceeding $5 million at the time of the receipt of such Designated Noncash Consideration (measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash for purposes of clause (ii) of this provision. With respect to any Asset Sale Proceeds related to Collateral in the form of cash or Temporary Cash Investments (including cash collected on any notes), and any Insurance 43 Proceeds or Condemnation Proceeds on account of any separate loss of any Collateral of the Issuers or their Subsidiaries in excess of $5 million which are not applied to the repair, rebuilding, restoration or replacement of the Collateral affected by the subject Loss Event (in any such case, the "Collateral Proceeds Amount"), the Issuers shall (i) to the extent the Issuers elect, apply the Collateral Proceeds Amount to acquire Property (provided that, in the case of an Asset Sale of Property constituting Collateral under the Collateral Trust Agreement, the Issuers shall cause such Property to become Collateral under the Collateral Trust Agreement as and when received by the Issuers or by any of its Subsidiaries), that is useful in any business in which the Issuers are permitted to be engaged within 365 days from the later of the date of such Asset Sale or the receipt of such Collateral Proceeds Amount (or become contractually bound to do so); or (ii) to the extent permitted under Section 9.223 of the Credit Agreement as in effect on the Effective Date, make an offer (a "Collateral Proceeds Offer") for up to a maximum principal amount (expressed as an integral multiple of $1,000) of Senior Notes equal to the Collateral Proceeds Amount to the extent the balance of such Collateral Proceeds Amount after application in accordance with clause (i) is in excess of $1 million at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Senior Notes tendered pursuant to such Collateral Proceeds Offer is less than the Collateral Proceeds Amount, the Issuers may use such portion of the Collateral Proceeds Amount that is not used to purchase Senior Notes tendered for general corporate purposes not inconsistent with the Senior Notes or this Indenture. If the aggregate principal amount of the Senior Notes tendered pursuant to such Collateral Proceeds Offer is more than the Collateral Proceeds Amount, the Senior Notes tendered will be repurchased on a pro rata basis or by such other method as the Trustee shall deem fair and appropriate. Upon the completion of any Collateral Proceeds Offer and the closing of any repurchase of Senior Notes tendered pursuant to such Collateral Proceeds Offer, the Collateral Proceeds Amount shall be deemed to be zero. Pending their use as hereinabove prescribed, all Asset Sale Proceeds from Asset Sales of Property constituting Collateral, Insurance Proceeds and Condemnation Proceeds from Loss Events and non-cash consideration from Asset Sales of Property constituting Collateral, including all Collateral Proceeds Amounts, shall be applied as provided for under the Collateral Documents. If the Issuers are required to make a Collateral Proceeds Offer, the Issuers shall mail, within 30 days following the date on which the Issuers receive any Collateral Proceeds Amounts, notice to the holders of the Senior Notes stating, among other things: (1) that such holders have the right to require the Issuers to apply the Collateral Proceeds Amount to repurchase such Senior Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase; (2) the purchase date, which shall be no earlier than 30 days and not later than 60 days from the date such notice is mailed; (3) the instructions, determined by the Issuers, that each holder of Senior Notes must follow in order to have such Senior Notes repurchased; and (4) the calculations used in determining the Collateral Proceeds Amount to be applied to the repurchase of such Senior Notes. The Issuers 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 prepayment, repayment, redemption or the repurchase of Senior Notes with the Asset Sale Proceeds as required herein. 44 To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue thereof.

Limitation on Certain Asset Sales. Neither the Issuers Company nor any of their its Subsidiaries will consummate or permit, directly or indirectly, any Asset Sale, unless (i) such Issuers the Company or such Subsidiary, as the case may be, receives consideration at the time of each such Asset Sale at least equal to the fair market value of the Property subject to such Asset Sale, (ii) in the case of all Asset Sales, at least 75% of the consideration received by such Issuer the Company or such Subsidiary is in the form of cash or Temporary Cash Investments, and (iii) no Default or Event of Default shall have occurred and be continuing on the date of such proposed Asset Sale or would result as a consequence of such Asset Sale; provided that (a) the amount of any notes or other obligations received by such Issuer the Company or such Subsidiary from such transferee that are converted by such Issuer the Company or such Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of such Asset Sale and (b) any Designated Noncash Consideration received by such Issuer the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (b) that is at that time outstanding, less the amount of cash or Temporary Cash Investments received by Issuers the Company or any of their its Subsidiaries in connection with a subsequent sale of any such Designated Noncash Consideration, not exceeding $5 million at the time of the receipt of such Designated Noncash Consideration (measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash for purposes of clause (ii) of this provision. [With respect to any Asset Sale Proceeds related to Collateral in the form of cash or Temporary Cash Investments (including cash collected on any notes), and any Insurance 43 Proceeds or Condemnation Proceeds on account of any separate loss of any Collateral of the Issuers Company or their its Subsidiaries in excess of [$5 2] million which are not applied to the repair, rebuilding, restoration or replacement of the Collateral affected by the subject Loss Event Event, (in any such case, the "Collateral Proceeds Amount"), the Issuers Company shall (i) first, to the extent the Issuers electCompany elects (or is required by the terms of any Indebtedness), prepay, repay, redeem or purchase Senior Indebtedness of the Company or Senior Indebtedness of a Wholly-Owned Subsidiary (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Sale or the receipt of such Collateral Proceeds Amount; provided, however, that in connection with any prepayment, repayment or purchase of Senior Indebtedness pursuant to this clause (i), the Company or such Wholly-Owned Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (ii) second, to the extent the Company elects, apply the Collateral Proceeds Amount to acquire Property (provided that, in the case of an Asset Sale of Property constituting Collateral under the Collateral Trust Agreement, the Issuers Company shall cause such Property to become Collateral under the Collateral Trust Agreement as and when received by the Issuers Company or by any of its Subsidiaries), that is useful in any business in which the Issuers are Company is permitted to be engaged within 365 days from the later of the date of such Asset Sale or the receipt of such Collateral Proceeds Amount Amount; and (or become contractually bound to do so); or (iiiii) to the extent permitted under Section 9.223 of the Credit Agreement as in effect on the Effective Datethird, make an offer (a "Collateral Proceeds Offer") for up to a maximum principal amount (expressed as an integral multiple of $1,000) of Senior Notes equal to the Collateral Proceeds Amount to the extent of the balance of such Collateral Proceeds Amount after application in accordance with clause clauses (i) is in excess of $1 million and (ii), at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Senior Notes tendered pursuant to such Collateral Proceeds Offer is less than the Collateral Proceeds Amount, the Issuers Company may use such portion of the Collateral Proceeds Amount that is not used to purchase Senior Notes tendered for general corporate purposes not inconsistent with the Senior Notes or this Indenture. If the aggregate principal amount of the Senior Notes tendered pursuant to such Collateral Proceeds Offer is more than the Collateral Proceeds Amount, the Senior Notes tendered will be repurchased on a pro rata basis or by such other method as the Trustee shall deem fair and appropriate. Upon the completion of any Collateral Proceeds Offer and the closing of any repurchase of Senior Notes tendered pursuant to such Collateral Proceeds Offer, the amount of Collateral Proceeds Amount shall be deemed to be zero. .] Pending their use as hereinabove prescribed, all Asset Sale Proceeds from Asset Sales of Property constituting Collateral, Insurance Proceeds and Condemnation Proceeds from Loss Events and non-cash consideration from Asset Sales of Property constituting Collateral, including all Collateral Proceeds Amounts, shall be applied as provided for under the Collateral Documents. If the Issuers are Company is required to make a Collateral Proceeds Offer, the Issuers Company shall mail, within 30 days following the date on which the Issuers receive Company receives any Collateral Proceeds Amounts, notice to the holders of the Senior Notes stating, among other things: (1) that such holders have the right to require the Issuers Company to apply the Collateral Proceeds Amount to repurchase such Senior Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase; (2) the purchase date, which shall be no earlier than 30 days and not later than 60 days from the date such notice is mailed; (3) the instructions, determined by the IssuersCompany, that each holder of Senior Notes must follow in order to have such Senior Notes repurchased; and (4) the calculations used in determining the amount of Collateral Proceeds Amount to be applied to the repurchase of such Senior Notes. In the event of the transfer of substantially all (but not all) of the assets of the Company or any Subsidiary of the Company or substantially all (but not all) of the assets of any division or line of business of the Company or any Subsidiary of the Company as an entirety to a Person in a 42 transaction or series of related transactions permitted under Section 5.1 hereof, the successor corporation shall be deemed to have sold the assets of the Company, the Subsidiary or the division or line of business, as the case may be, not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such assets of the Company, the Subsidiary or the division or line of business, as the case may be, deemed to be sold shall be deemed to be Asset Sale Proceeds for purposes of this covenant. The Issuers 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 prepayment, repayment, redemption or the repurchase of Senior Notes with the Asset Sale Proceeds as required herein. 44 To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Issuers Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue thereof.

Limitation on Certain Asset Sales. Neither the Issuers nor (a) The Company shall not, and will not permit any of their Subsidiaries will consummate or permitRestricted Subsidiary to, directly or indirectly, engage in any Asset Sale, Sale unless (i) such Issuers the consideration received by the Company or such SubsidiaryRestricted Subsidiary for such Asset Sale is not less than the fair market value of the assets sold (as determined by the Board of Directors of the Company, whose good faith determination will be conclusive) and (ii) the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or cash equivalents; provided, however, that the Company may receive up to $5 million in the form of non-cash consideration in connection with the Atlas Disposition. (b) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company may, at its option, within 12 months after such Asset Sale, (i) apply all or a portion of the Net Cash Proceeds to the permanent reduction of amounts outstanding under the Bank Credit Agreement or to the repayment of other senior Indebtedness of the Company or a Restricted Subsidiary or (ii) invest (or enter into a legally binding agreement to invest) all or a portion of such Net Cash Proceeds in properties and assets to replace the properties and assets that were the subject of the Asset Sale or in properties and assets that will be used in businesses of the Company or its Restricted Subsidiaries, as the case may be, receives consideration at existing on the time Closing Date. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, the Company may, within 90 days of each such Asset Sale at least equal to the fair market value termination or within 12 months of the Property subject to such Asset Sale, (ii) whichever is later, invest such Net Cash Proceeds as provided in the case of all Asset Sales, at least 75% of the consideration received by such Issuer or such Subsidiary is in the form of cash or Temporary Cash Investments, and (iii) no Default or Event of Default shall have occurred and be continuing on the date of such proposed Asset Sale or would result as a consequence of such Asset Sale; provided that (a) the amount of any notes or other obligations received by such Issuer or such Subsidiary from such transferee that are converted by such Issuer or such Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of such Asset Sale and (b) any Designated Noncash Consideration received by such Issuer or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (b) that is at that time outstanding, less the amount of cash or Temporary Cash Investments received by Issuers or any of their Subsidiaries in connection with a subsequent sale of any such Designated Noncash Consideration, not exceeding $5 million at the time of the receipt of such Designated Noncash Consideration (measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash for purposes of clause (ii) of this provision. With respect to any Asset Sale Proceeds related to Collateral in the form of cash or Temporary Cash Investments (including cash collected on any notes), and any Insurance 43 Proceeds or Condemnation Proceeds on account of any separate loss of any Collateral of the Issuers or their Subsidiaries in excess of $5 million which are not applied to the repair, rebuilding, restoration or replacement of the Collateral affected by the subject Loss Event (in any such case, the "Collateral Proceeds Amount"), the Issuers shall (i) to the extent the Issuers elect, apply the Collateral Proceeds Amount to acquire Property (provided that, in the case of an Asset Sale of Property constituting Collateral under the Collateral Trust Agreement, the Issuers shall cause such Property to become Collateral under the Collateral Trust Agreement as and when received by the Issuers or by any of its Subsidiaries), that is useful in any business in which the Issuers are permitted to be engaged within 365 days from the later of the date of such Asset Sale or the receipt of such Collateral Proceeds Amount (or become contractually bound to do so); or (ii) (without regard to the extent permitted under Section 9.223 parenthetical contained in such clause (ii)) above. The amount of such Net Cash Proceeds not so used as set forth above in this paragraph constitutes "Excess Proceeds." (c) When the Credit Agreement as in effect on aggregate amount of Excess Proceeds exceeds $5 million, the Effective DateCompany shall, within 30 days thereafter, make an offer (a "Collateral Proceeds Offer") for up to a maximum principal amount (expressed as an integral multiple purchase from all Holders of $1,000) of Senior Notes equal to the Collateral Proceeds Amount to the extent the balance of such Collateral Proceeds Amount after application in accordance with clause (i) is in excess of $1 million at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonAdditional Notes, if any, to the date of purchase on a pro rata basis, in accordance with the procedures set forth in this Indenture. To , the extent that the aggregate maximum principal amount (expressed as a multiple of Senior $1,000) of Notes tendered pursuant to such Collateral Proceeds Offer is less than the Collateral Proceeds Amountand Additional Notes, the Issuers if any, that may use such portion of the Collateral Proceeds Amount that is not used to purchase Senior Notes tendered for general corporate purposes not inconsistent be purchased with the Senior Notes or this Indenture. If the aggregate principal amount of the Senior Notes tendered pursuant to such Collateral Proceeds Offer is more than the Collateral Proceeds AmountExcess Proceeds, the Senior Notes tendered will be repurchased on a pro rata basis or by such other method as the Trustee shall deem fair and appropriate. Upon the completion of any Collateral Proceeds Offer and the closing of any repurchase of Senior Notes tendered pursuant to such Collateral Proceeds Offer, the Collateral Proceeds Amount shall be deemed to be zero. Pending their use as hereinabove prescribed, all Asset Sale Proceeds from Asset Sales of Property constituting Collateral, Insurance Proceeds and Condemnation Proceeds from Loss Events and non-cash consideration from Asset Sales of Property constituting Collateral, including all Collateral Proceeds Amounts, shall be applied as provided for under the Collateral Documents. If the Issuers are required to make a Collateral Proceeds Offer, the Issuers shall mail, within 30 days following the date on which the Issuers receive any Collateral Proceeds Amounts, notice to the holders of the Senior Notes stating, among other things: (1) that such holders have the right to require the Issuers to apply the Collateral Proceeds Amount to repurchase such Senior Notes at a purchase price in cash equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest, if any, to the date such offer to purchase is consummated. To the extent that the aggregate principal amount of purchase; (2) Notes and Additional Notes, if any, tendered pursuant to such offer to purchase is less than the purchase dateExcess Proceeds, which shall be no earlier than 30 days the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes and Additional Notes, if any, validly tendered and not later than 60 days from withdrawn by holders thereof exceeds the date such notice is mailed; (3) Excess Proceeds, the instructionsNotes and Additional Notes, determined by the Issuersif any, that each holder of Senior Notes must follow in order to have such Senior Notes repurchased; and (4) the calculations used in determining the Collateral Proceeds Amount to be applied to the repurchase purchased will be selected on a pro rata basis. Upon completion of such Senior Notesoffer to purchase, the amount of Excess Proceeds will be reset to zero. The Issuers will Company shall comply with the requirements of Rule 14e-1 applicable tender offer rules, including Rule-14e under the Exchange Act Act, and any other applicable securities laws and regulations thereunder regulations, to the extent such laws and regulations are applicable in connection with the prepayment, repayment, redemption or the repurchase of Senior Notes with the Asset Sale Proceeds as required herein. 44 To the extent event that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Issuers will comply with the applicable securities laws and regulations and will not be deemed Company is required to have breached its obligations under this covenant by virtue thereofrepurchase Notes as described above.

Limitation on Certain Asset Sales. Neither the Issuers Company nor any of their its Subsidiaries will consummate or permit, directly or indirectly, any Asset Sale, unless (i) such Issuers the Company or such Subsidiary, as the case may be, receives consideration at the time of each such Asset Sale at least equal to the fair market value of the Property subject to such Asset Sale, (ii) (x) in the case of all an Asset SalesSale of Property constituting Collateral (other than a Designated Facility), at least 7550% of the consideration received by such Issuer the Company or such Subsidiary is in the form of cash or Temporary Cash Investments, and (y) in the case of all other Asset Sales, at least 33% of the consideration is in the form of cash or Temporary Cash Investments (provided that in the case of an Asset Sale of a Designated Facility, there is no requirement that the consideration be in the form of cash or Temporary Cash Investments) and (iii) no Default or Event of Default shall have occurred and be continuing on the date of such proposed Asset Sale or would result as a consequence of such Asset Sale; provided that (a) the amount of any notes or other obligations received by such Issuer the Company or such Subsidiary from such transferee that are converted by such Issuer the Company or such Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of such Asset Sale and (b) any Designated Noncash Consideration received by such Issuer the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (b) that is at that time outstanding, less the amount of cash or Temporary Cash Investments received by Issuers the Company or any of their its Subsidiaries in connection with a subsequent sale of any such Designated Noncash Consideration, not exceeding $5 million at the time of the receipt of such Designated Noncash Consideration (measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash for purposes of clause (ii) of this provision. Notwithstanding clauses (i) and (ii) of the immediately preceding paragraph, the Company or any of the Subsidiaries may swap assets used in the business in a substantially concurrent exchange for other assets to be used in the business (such newly acquired asset or assets a "Swapped Asset"); provided, however, that (i) the aggregate LTM EBITDA for all Swapped Assets (determined for each Swapped Asset as of the time of exchange thereof) during the time in which any portion of the Senior Notes is outstanding shall not exceed $[30 million], (ii) after giving effect to the asset swap on a pro forma basis, no Default or Event of Default has occurred and is continuing, (iii) LTM EBITDA for the Swapped Asset or aggregate LTM EBITDA for a related series of Swapped Assets shall be at least [80]% of LTM EBITDA for the asset or related series of assets exchanged therefor, (iv) prior to consummating any such asset swap, the Company shall have delivered to the Trustee a certificate signed by the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Company demonstrating to the reasonable satisfaction of the Trustee that, after giving effect to any such asset swap, the Company would be able to incur at least $1.00 of additional Indebtedness under the first paragraph of Section 4.6, (v) prior to consummating any Asset Swap the Company shall have provided evidence reasonably satisfactory to the Trustee demonstrating satisfaction of the requirements of the Credit Agreement relating to any such asset swap, and (vi) the Company or the relevant Guarantor shall take all steps requested by the Trustee to provide the Collateral Agent with a fully perfected Lien on or security interest in the Property being received by the Company or any of the Guarantors in connection with any such Asset Swap to the same extent as the Lien or security interest which the Collateral Agent had in the Property being exchanged by the Company or any of its Subsidiaries. With respect to any Asset Sale Proceeds related to Collateral in the form of cash or Temporary Cash Investments (including cash collected on any notes), and any Insurance 43 Proceeds or Condemnation Proceeds on account of any separate loss of any Collateral of the Issuers Company or their its Subsidiaries in excess of $5 2 million which are not applied to the repair, rebuilding, restoration or replacement of the Collateral affected by the subject Loss Event Event, (in any such case, the "Collateral Proceeds Amount"), the Issuers Company shall (i) first, to the extent the Issuers electCompany elects (or is required by the terms of any Indebtedness), prepay, repay, redeem or purchase Senior Indebtedness of the Company or Senior Indebtedness of a Wholly-Owned Subsidiary (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Sale or the receipt of such Collateral Proceeds Amount; provided, however, that in connection with any prepayment, repayment or purchase of Senior Indebtedness pursuant to this clause (i), the Company or such Wholly-Owned Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (ii) second, to the extent the Company elects, apply the Collateral Proceeds Amount to acquire Property (provided that, in the case of an Asset Sale of Property constituting Collateral under the Collateral Trust Intercreditor Agreement, the Issuers Company shall cause such Property to become Collateral under the Collateral Trust Intercreditor Agreement as and when received by the Issuers Company or by any of its Subsidiaries), that is useful in any business in which the Issuers are Company is permitted to be engaged within 365 days from the later of the date of such Asset Sale or the receipt of such Collateral Proceeds Amount Amount; and (or become contractually bound to do so); or (iiiii) to the extent permitted under Section 9.223 of the Credit Agreement as in effect on the Effective Datethird, make an offer (a "Collateral Proceeds Offer") for up to a maximum principal amount (expressed as an integral multiple of $1,000) of Senior Notes equal to the Collateral Proceeds Amount to the extent of the balance of such Collateral Proceeds Amount after application in accordance with clause clauses (i) is in excess of $1 million and (ii), at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Senior Notes tendered pursuant to such Collateral Proceeds Offer is less than the Collateral Proceeds Amount, the Issuers Company may use such portion of the Collateral Proceeds Amount that is not used to purchase Senior Notes tendered for general corporate purposes not inconsistent with the Senior Notes or this Indenture. If the aggregate principal amount of the Senior Notes tendered pursuant to such Collateral Proceeds Offer is more than the Collateral Proceeds Amount, the Senior Notes tendered will be repurchased on a pro rata basis or by such other method as the Trustee shall deem fair and appropriate. Upon the completion of any Collateral Proceeds Offer and the closing of any repurchase of Senior Notes tendered pursuant to such Collateral Proceeds Offer, the amount of Collateral Proceeds Amount shall be deemed to be zero. Pending their use as hereinabove prescribed, all Asset Sale Proceeds from Asset Sales of Property constituting Collateral, Insurance Proceeds and Condemnation Proceeds from Loss Events and non-cash consideration from Asset Sales of Property constituting Collateral, including all Collateral Proceeds Amounts, shall be applied as provided for under the Collateral Documents. If the Issuers are Company is required to make a Collateral Proceeds Offer, the Issuers Company shall mail, within 30 days following the date on which the Issuers receive Company receives any Collateral Proceeds Amounts, notice to the holders of the Senior Notes stating, among other things: (1) that such holders have the right to require the Issuers Company to apply the Collateral Proceeds Amount to repurchase such Senior Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase; (2) the purchase date, which shall be no earlier than 30 days and not later than 60 days from the date such notice is mailed; (3) the instructions, determined by the IssuersCompany, that each holder of Senior Notes must follow in order to have such Senior Notes repurchased; and (4) the calculations used in determining the amount of Collateral Proceeds Amount to be applied to the repurchase of such Senior Notes. In the event of the transfer of substantially all (but not all) of the assets of the Company or any Subsidiary of the Company or substantially all (but not all) of the assets of any division or line of business of the Company or any Subsidiary of the Company as an entirety to a Person in a transaction or series of related transactions permitted under Section 5.1 hereof, the successor corporation shall be deemed to have sold the assets of the Company, the Subsidiary or the division or line of business, as the case may be, not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such assets of the Company, the Subsidiary or the division or line of business, as the case may be, deemed to be sold shall be deemed to be Asset Sale Proceeds for purposes of this covenant. The Issuers 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 prepayment, repayment, redemption or the repurchase of Senior Notes with the Asset Sale Proceeds as required herein. 44 To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Issuers Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue thereof.

Limitation on Certain Asset Sales. Neither the Issuers Company nor any of their its Subsidiaries will consummate or permit, directly or indirectly, any Asset Sale, unless (i) such Issuers the Company or such Subsidiary, as the case may be, receives consideration at the time of each such Asset Sale at least equal to the fair market value of the Property subject to such Asset Sale, (ii) (x) in the case of all an Asset SalesSale of Property constituting Collateral (other than a Designated Facility), at least 7550% of the consideration received by such Issuer the Company or such Subsidiary is in the form of cash or Temporary Cash Investments, and (y) in the case of all other Asset Sales, at least 33% of the consideration is in the form of cash or Temporary Cash Investments (provided that in the case of an Asset Sale of a Designated Facility, there is no requirement that the consideration be in the form of cash or Temporary Cash Investments) and (iii) no Default or Event of Default shall have occurred and be continuing on the date of such proposed Asset Sale or would result as a consequence of such Asset Sale; provided that (a) the amount of any notes or other obligations received by such Issuer the Company or such Subsidiary from such transferee that are converted by such Issuer the Company or such Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of such Asset Sale and (b) any Designated Noncash Consideration received by such Issuer the Company or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (b) that is at that time outstanding, less the amount of cash or Temporary Cash Investments received by Issuers the Company or any of their its Subsidiaries in connection with a subsequent sale of any such Designated Noncash Consideration, not exceeding $5 million at the time of the receipt of such Designated Noncash Consideration (measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash for purposes of clause (ii) of this provision. Notwithstanding clauses (i) and (ii) of the immediately preceding paragraph, the Company or any of the Subsidiaries may swap assets used in the business in a substantially concurrent exchange for other assets to be used in the business (such newly acquired asset or assets a "Swapped Asset"); provided, however, that (i) the aggregate LTM EBITDA for all Swapped Assets (determined for each Swapped Asset as of the time of exchange thereof) during the time in which any portion of the Senior Notes is outstanding shall not exceed $30 million, (ii) after giving effect to the asset swap on a pro forma basis, no Default or Event of Default has occurred and is continuing, (iii) LTM EBITDA for the Swapped Asset or aggregate LTM EBITDA for a related series of Swapped Assets shall be at least 80% of LTM EBITDA for the asset or related series of assets exchanged therefor, (iv) prior to consummating any such asset swap, the Company shall have delivered to the Trustee a certificate signed by the Chief Financial Officer, Chief Accounting Officer or Treasurer of the Company demonstrating to the reasonable satisfaction of the Trustee that, after giving effect to any such asset swap, the Company would be able to incur at least $1.00 of additional Indebtedness under the first paragraph of Section 4.6, (v) prior to consummating any Asset Swap the Company shall have provided evidence reasonably satisfactory to the Trustee demonstrating satisfaction of the requirements of the Credit Agreement relating to any such asset swap, and (vi) the Company or the relevant Guarantor shall take all steps requested by the Trustee to provide the Collateral Agent with a fully perfected Lien on or security interest in the Property being received by the Company or any of the Guarantors in connection with any such Asset Swap to the same extent as the Lien or security interest which the Collateral Agent had in the Property being exchanged by the Company or any of its Subsidiaries. With respect to any Asset Sale Proceeds related to Collateral in the form of cash or Temporary Cash Investments (including cash collected on any notes), and any Insurance 43 Proceeds or Condemnation Proceeds on account of any separate loss of any Collateral of the Issuers Company or their its Subsidiaries in excess of $5 2 million which are not applied to the repair, rebuilding, restoration or replacement of the Collateral affected by the subject Loss Event Event, (in any such case, the "Collateral Proceeds Amount"), the Issuers Company shall (i) first, to the extent the Issuers electCompany elects (or is required by the terms of any Indebtedness), prepay, repay, redeem or purchase Senior Indebtedness of the Company or Senior Indebtedness of a Wholly-Owned Subsidiary (in each case, other than Indebtedness owed to the Company or an Affiliate of the Company) within 365 days from the later of the date of such Asset Sale or the receipt of such Collateral Proceeds Amount; provided, however, that in connection with any prepayment, repayment or purchase of Senior Indebtedness pursuant to this clause (i), the Company or such Wholly-Owned Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (ii) second, to the extent the Company elects, apply the Collateral Proceeds Amount to acquire Property (provided that, in the case of an Asset Sale of Property constituting Collateral under the Collateral Trust Intercreditor Agreement, the Issuers Company shall cause such Property to become Collateral under the Collateral Trust Intercreditor Agreement as and when received by the Issuers Company or by any of its Subsidiaries), that is useful in any business in which the Issuers are Company is permitted to be engaged within 365 days from the later of the date of such Asset Sale or the receipt of such Collateral Proceeds Amount Amount; and (or become contractually bound to do so); or (iiiii) to the extent permitted under Section 9.223 of the Credit Agreement as in effect on the Effective Datethird, make an offer (a "Collateral Proceeds Offer") for up to a maximum principal amount (expressed as an integral multiple of $1,000) of Senior Notes equal to the Collateral Proceeds Amount to the extent of the balance of such Collateral Proceeds Amount after application in accordance with clause clauses (i) is in excess of $1 million and (ii), at a purchase price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Senior Notes tendered pursuant to such Collateral Proceeds Offer is less than the Collateral Proceeds Amount, the Issuers Company may use such portion of the Collateral Proceeds Amount that is not used to purchase Senior Notes tendered for general corporate purposes not inconsistent with the Senior Notes or this Indenture. If the aggregate principal amount of the Senior Notes tendered pursuant to such Collateral Proceeds Offer is more than the Collateral Proceeds Amount, the Senior Notes tendered will be repurchased on a pro rata basis or by such other method as the Trustee shall deem fair and appropriate. Upon the completion of any Collateral Proceeds Offer and the closing of any repurchase of Senior Notes tendered pursuant to such Collateral Proceeds Offer, the amount of Collateral Proceeds Amount shall be deemed to be zero. Pending their use as hereinabove prescribed, all Asset Sale Proceeds from Asset Sales of Property constituting Collateral, Insurance Proceeds and Condemnation Proceeds from Loss Events and non-cash consideration from Asset Sales of Property constituting Collateral, including all Collateral Proceeds Amounts, shall be applied as provided for under the Collateral Documents. If the Issuers are Company is required to make a Collateral Proceeds Offer, the Issuers Company shall mail, within 30 days following the date on which the Issuers receive Company receives any Collateral Proceeds Amounts, notice to the holders of the Senior Notes stating, among other things: (1) that such holders have the right to require the Issuers Company to apply the Collateral Proceeds Amount to repurchase such Senior Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase; (2) the purchase date, which shall be no earlier than 30 days and not later than 60 days from the date such notice is mailed; (3) the instructions, determined by the IssuersCompany, that each holder of Senior Notes must follow in order to have such Senior Notes repurchased; and (4) the calculations used in determining the amount of Collateral Proceeds Amount to be applied to the repurchase of such Senior Notes. In the event of the transfer of substantially all (but not all) of the assets of the Company or any Subsidiary of the Company or substantially all (but not all) of the assets of any division or line of business of the Company or any Subsidiary of the Company as an entirety to a Person in a transaction or series of related transactions permitted under Section 5.1 hereof, the successor corporation shall be deemed to have sold the assets of the Company, the Subsidiary or the division or line of business, as the case may be, not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such assets of the Company, the Subsidiary or the division or line of business, as the case may be, deemed to be sold shall be deemed to be Asset Sale Proceeds for purposes of this covenant. The Issuers 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 prepayment, repayment, redemption or the repurchase of Senior Notes with the Asset Sale Proceeds as required herein. 44 To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Issuers Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue thereof.