Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not directly or indirectly: (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (C) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company; (b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for (i) sales of Inventory in the ordinary course of business, (ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and (v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor, (vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business, (vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof, (viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business, (ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above, (x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco), (xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and (xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; (d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and (e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 2 contracts
Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate or amalgamate with any other Person or permit any other Person to merge into or with or consolidate or amalgamate with it except that (i) any Borrower or Guarantor Subsidiary of Parent may merge with or and into or consolidate or amalgamate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaParent, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such merger Subsidiaries to so merge, consolidate or consolidationamalgamate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging, consolidating or amalgamating, which person will be the surviving entity, the locations of the assets of the persons that are merging, consolidating or amalgamating, and the material agreements and documents relating to such merger, consolidation or amalgamation, (Bii) Agent shall have received such other information with respect to such merger, consolidation or amalgamation as Agent may reasonably request, (iii) as of the effective date of the merger merger, consolidation or consolidation amalgamation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger, consolidation or amalgamation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, (vi) in any merger, consolidation or amalgamation involving a Borrower, the surviving entity of such merger, consolidation or amalgamation shall be a Borrower and (Dvii) in no event shall any Accounts or Inventory acquired by a Borrower pursuant to a merger, consolidation or amalgamation be deemed to be Eligible Accounts or Eligible Inventory until Agent shall promptly receive true, correct have conducted due diligence with respect thereto that is satisfactory to Agent and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior then only to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged extent that the criteria for Eligible Accounts and Eligible Inventory are satisfied with or consolidate into any Borrower or Guarantor other than another Petro Companyrespect thereto;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and obsolete Inventory which does not consist of Eligible Inventory or Eligible Consigned Precious Metals Inventory, so long as (A) such sales or other dispositions do not involve Equipment and Inventory having an aggregate fair market value in excess of $1,000,000 for all such Equipment and Inventory disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and (B) the Net Cash Proceeds payable or deliverable to Borrowers or Guarantors in respect of any such sale or other disposition shall be promptly remitted to Agent in immediately available funds and applied to the Obligations and the Term B Loan Debt in accordance with Section 2.4(c)(i) hereof;
(iii) the issuance and sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the Net Cash Proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the Net Cash Proceeds of the sale and issuance of such Capital Stock shall be paid in accordance with the terms of Sections 2.4 and 6.4 hereof and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition by H&H International to WHX of Cash Equivalents for fair market value in all of the ordinary course issued and outstanding shares of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower)Indiana Tube Denmark; provided, that, (A) as of the date of such sale or other disposition and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing and (B) the Net Cash Proceeds (if any) from such sale or other disposition shall promptly be remitted to Agent in immediately available funds for application to the Obligations in the order and manner set forth in Section 2.4(c)(iii) hereof,
(vi) the sale or other disposition of the Fairfield Property and the North Attleboro - Elm Street Property; provided, that, (A) as of the date of such sale or other disposition and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing, (B) such sale or other disposition shall be on commercially reasonable terms in a bona fide arm’s length transaction with a Person that is not an Affiliate of a Borrower, except as otherwise permitted under Section 9.12(a) hereof, (C) Administrative Borrower shall furnish Agent with prior written notice of such sale or other disposition (together with such information relating thereto as Agent shall reasonably request), and (D) the Net Cash Proceeds payable or deliverable to Borrowers or Guarantors in respect of any such sale or other disposition shall be promptly remitted to Agent in immediately available funds and applied to the Obligations and the Term B Loan Debt in accordance with Section 2.4(c)(i) hereof;
(vii) the sale or other disposition of any Real Property of any Borrower or Guarantor other than the Fairfield Property and the North Attleboro - Elm Street Property, provided, that, as to any such sale or other disposition, each of the following conditions is satisfied as determined by Agent in good faith: (A) Administrative Borrower shall furnish Agent with prior written notice of such sale or other disposition (together with such information relating thereto as Agent shall reasonably request), (B) such sale or other disposition shall be on terms and conditions satisfactory to and approved in writing by Agent and the Required Lenders; (C) the Net Cash Proceeds payable or deliverable to Borrowers and Guarantors in respect of any such sale or other disposition shall be promptly remitted to Agent in immediately available funds and applied to the Obligations and the Term B Loan Debt in accordance with Section 2.4(c)(i) hereof, and (D) as of the date of any such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(viii) the transfer by any Borrower or Guarantor of any Equipment (other than the Extruder Equipment) to a Subsidiary of Parent organized outside of the United States, Canada or Mexico; provided, that, the aggregate amount of the fair market value of such Equipment does not exceed $500,000, and the transfer by any Borrower or Guarantor of the Extruder Equipment to a Subsidiary of Parent organized outside of the United States, Canada or Mexico;
(ix) the sale of the Capital Stock of an Exempt Subsidiary by the applicable Borrower or Guarantor or the sale or other disposition of all or substantially all of the assets and properties of an Exempt Subsidiary; provided, that, as to any such sale or other disposition, each of the following conditions is satisfied as determined by Agent in good faith: (A) as of the date of any such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; (B) such sale or other disposition shall be on commercially reasonable terms in a bona fide arms arm’s length transactiontransaction with a Person that is not an Affiliate of a Borrower, (C) as the applicable Borrowers or Guarantors shall have received cash consideration in respect of such sale or other disposition in an amount of not less than five (5) times TTM EBITDA of the applicable Exempt Subsidiary for the period of twelve (12) consecutive fiscal months ended on the last day of the month immediately preceding the date of such sale or other disposition, (D) Administrative Borrower shall furnish Agent with prior written notice of such sale or other disposition (together with such information relating thereto as Agent shall reasonably request), (E) Administrative Borrower shall furnish Agent with projections, in form and substance satisfactory to Agent, that Parent and its Subsidiaries (other than the Specified Subsidiaries), on a consolidated basis, are projected to be in compliance with the financial covenants in Section 9.17 hereof for the twelve (12) month period ended one year after giving effect theretothe proposed date of consummation of such sale or other disposition, and (F) the aggregate net book value Net Cash Proceeds payable or deliverable to Borrowers and Guarantors in respect of all any such sale or other disposition shall be promptly remitted to Agent in immediately available funds and applied to the Obligations and the Term B Loan Debt in accordance with Section 2.4(c)(ii) hereof, and
(x) the sale or other disposition of Precious Metals Inventory by any Borrower or Guarantor to Steel Partners II, L.P. or its affiliates, provided, that, as to any such sale or other disposition, each of the assets so sold following conditions is satisfied as determined by Agent in good faith: (A) Administrative Borrower shall furnish Agent with prior written notice of such sale or disposed other disposition (together with such information relating thereto as Agent shall reasonably request), (B) such sale or other disposition shall be on terms and conditions satisfactory to and approved in writing by Agent and the Required Lenders; (C) the Net Cash Proceeds payable or deliverable to Borrowers and Guarantors in respect of any such sale or other disposition shall be promptly remitted to Agent in any fiscal year of Parent shall not exceed $20,000,000immediately available funds and applied to the Obligations and the Term B Loan Debt in accordance with Section 2.4(c)(i) hereof, and (D) as of the date of any such sale or other disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash no Default or Event of Default shall not exist or have occurred and be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,continuing;
(c) wind up, liquidate or dissolve dissolve, except that Sumco, any Guarantor, or any Subsidiary of a Borrower or Guarantor that is not itself a Borrower may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of Sumco, such Guarantor or other Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor or such other Subsidiary is a party or may be bound, (iii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor or other Subsidiary shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets; provided, that, Sumco shall not be required to comply with this clause (iii), (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor or such other Subsidiary has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of Sumco, such winding Guarantor or such other Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 2 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and each Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) it, except, that, Guarantor or any wholly owned Subsidiary of Guarantor or Borrower or Guarantor may merge with or and into or consolidate with Borrower or any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms wholly owned Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithAgent: (Ai) Agent shall receive prompt have received not less than five (5) days’ prior written notice of the consummation of any such merger or consolidationconsolidation of Borrower or any Guarantor to so merge or consolidate and such information with respect thereto as Agent may reasonably request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or Default, shall exist or have occurred, (iii) Agent shall have occurred received, true, correct and be continuingcomplete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (Civ) the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions have a net worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the case net worth of a merger between any Borrower or such Guarantor and involved in such newly formed corporation merger immediately prior to such transaction or limited liability company where such corporation or limited liability company is series of transactions, (v) the surviving corporation or limited liability companyentity shall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, (vi) the surviving entity of a merger between Borrower and Guarantor or any other Subsidiary of Borrower or such Guarantor shall be Borrower, and (Dvii) Agent in a merger where such Guarantor is the surviving entity, such Guarantor shall promptly receive true, correct ratify and complete copies confirm that its guarantee of all material agreements, documents the Obligations and instruments relating to such merger or consolidation; provided, further, that, prior shall apply to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro CompanyObligations as assumed by such surviving entity;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) (A) the sale or other disposition (other than in connection with the closing or sale of a retail store location) of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or any Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $750,000 for all such Equipment disposed of in any fiscal year of Borrower or as Agent may otherwise agree and (B) the sale of the Real Property or the Capital Stock of any Propco; identified on Schedule 9.7 hereto, provided, that, (A) except as of the date of such sale or disposition and after giving effect theretoAgent may otherwise agree in writing, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if event that a Cash Dominion Period existsEvent has occurred and is continuing, all of the net cash proceeds of the sale of such sale or disposition Real Property shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofsuch order and manner as Agent may determine,
(iii) the issuance and sale by Parent Borrower or any Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) Borrower or Guarantor after the date hereof; provided, that, (A) if a Cash Dominion Period existsexcept in the case of Capital Stock issued by Borrower to Parent in conjunction with the issuance by Parent of its Capital Stock to employees of Borrower or its Subsidiaries (which shall be reported quarterly to Agent in accordance with Section 7.1(a)(iv) hereof), Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by Borrower or Guarantor which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower or any Guarantor from such sale, (B) if a Cash Dominion Period existsBorrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or the right of Borrower and Guarantors to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower and Guarantors with Agent and Lenders or are more restrictive or burdensome to Borrower or Guarantors than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing or as is otherwise permitted in Section 9.9(e)(v) hereof, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(asuch order and manner as Agent may determine so long as a Cash Dominion Event has occurred and is continuing, and (E) hereofin no event shall Borrower or Guarantors issue or sell Capital Stock which would result in a Change of Control,
(iv) the issuance of Capital Stock of any Borrower or any Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or any Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or any Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease sales or other disposition dispositions by Borrower of assets in connection with the closing or sale of any a retail store location of Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases Borrower’s business which consist of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value leasehold interests in the ordinary course premises of business,
(ix) such store, the issuance Equipment and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all fixtures located at such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco premises and the leaseback books and records relating exclusively and directly to the operations of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchiseesstore; provided, that, as to each and all such sales, (A) on the date of, and after giving effect to, any such sale, in any calendar year, Borrower shall not have closed or sold retail store locations accounting for more than five (5%) percent of all sales of Borrower in the immediately preceding twelve (12) month period, (B) Agent shall have received not less than ten (10) Business Days prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale, transfer sale or other disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale exist or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (BD) such sale or disposition shall be on commercially reasonable prices and terms in a bona fide arms arm’s length transaction, and (CE) as of the date any and all net proceeds payable or delivered to Borrower in respect of such sale or other disposition and after giving effect theretoshall be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the aggregate net book value terms of all this Agreement,
(vi) sales of Installment Sales Contracts to Beneficial pursuant to the terms of the assets so sold or disposed of Beneficial Agreements (as in any fiscal year of Parent shall not exceed $20,000,000, (D) as of effect on the date hereof) in the ordinary course of such business,
(vii) Intentionally Deleted, or
(viii) the sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be lease of delivery vehicles to non-Affiliates of Borrower in connection with any sale-leaseback an outsourcing transaction (it being understood that any such sale-leaseback transaction shall be governed by related to the terms of Section 9.7(b)(x) hereof)companies, (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included provided, that, except as Agent may otherwise agree in the Borrowing Base or if a Cash Dominion Period existswriting, all of the net cash proceeds of the such sale or disposition sales and leases shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,such order and manner as Agent may determine so long as a Cash Dominion Event has occurred and is continuing; and
(c) wind up, liquidate or dissolve except that any Guarantor or any Subsidiary may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Guarantor or Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which Borrower or such Guarantor is a party or may be bound, (iii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor or Subsidiary shall be duly and validly transferred and assigned to a Borrower or another such Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may require) or as permitted under Section 9.8 of this Agreement and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor or Subsidiary to Borrower, or Guarantor, as applicable, (iv) Agent shall have received all documents and agreements that any Borrower or such Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no neither Borrower or nor any Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, and the amount of such obligations and liabilities in excess of the book value of any assets transferred to Borrower in the aggregate do not exceed $250,000, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to foregoing unless the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as consummation of the date of any applicable agreement is contingent upon Borrower’s obtaining Agent and Lenders’ consent to such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credittransaction.
Appears in 2 contracts
Samples: Loan and Security Agreement (HHG Distributing, LLC), Loan and Security Agreement (Hhgregg, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that that
(i) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaGuarantor, provided, that, in each case that each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Persons to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the Persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (B) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (CD) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (E) the surviving corporation or limited liability companylegal entity shall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor (F) Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and ;
(Dii) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Companymay merge with any Subsidiary that is not an Obligor, provided, that such merger constitutes a Permitted Acquisition/Merger;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) other than during any Covenant Recalibration Period, the sale or other disposition of Equipment assets (including worn-out other than First Priority Collateral or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propcoof its Subsidiaries to the extent such sale or disposition would result in a Change of Control) if at the time of and after giving effect to such sale or disposition, Excess Availability shall be not less than $30,000,000 (or 16.7% of the Maximum Amount);
(iii) during any Covenant Recalibration Period, the sale or other disposition of assets (other than First Priority Collateral or Capital Stock of any of its Subsidiaries to the extent such sale or disposition would result in a Change of Control) in an aggregate book value in excess of $70,000,000; provided, that, at the time of and after giving effect to such sale or disposition:
(A) Excess Availability shall be not less than $30,000,000 (or 16.7% of the Maximum Credit); and
(B) the Borrowers shall (1) have maintained Average Excess Availability for the 12-month period immediately preceding the closing date of such sale of not less than $30,000,000, (2) project Average Excess Availability on a pro forma basis for the 12-month period immediately following the closing date of such sale of not less than $30,000,000, (3) have maintained a Fixed Charge Coverage Ratio-Recalibrated for the 12-month period immediately preceding the closing date of such sale of not less than 1.10 to 1.0, and (4) project a Fixed Charge Coverage Ratio-Recalibrated on a pro forma basis for the 12-month period immediately following the closing date of such sale of not less than1.10 to 1.0;
(iv) the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof; provided, that, (A) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations, whether pursuant to Section 6.4(c) or otherwise, in such order and manner as Agent may determine or at Agent’s option, to be held as cash collateral for the Obligations and (B) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,occurred;
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 2 contracts
Samples: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate or amalgamate with any other Person or permit any other Person to merge into or with or consolidate or amalgamate with it except that (i) any Borrower or Guarantor Subsidiary of Parent may merge with or and into or consolidate or amalgamate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaParent, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such merger Subsidiaries to so merge, consolidate or consolidationamalgamate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging, consolidating or amalgamating, which person will be the surviving entity, the locations of the assets of the persons that are merging, consolidating or amalgamating, and the material agreements and documents relating to such merger, consolidation or amalgamation, (Bii) Agent shall have received such other information with respect to such merger, consolidation or amalgamation as Agent may reasonably request, (iii) as of the effective date of the merger merger, consolidation or consolidation amalgamation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger, consolidation or amalgamation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (Dvi) Agent shall promptly receive truein any merger, correct and complete copies consolidation or amalgamation involving a Borrower, the surviving entity of all material agreementssuch merger, documents and instruments relating to such merger consolidation or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company amalgamation shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Companya Borrower;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and obsolete Inventory so long as (A)such sales or other dispositions do not involve Equipment and Inventory having an aggregate fair market value in excess of $1,000,000 for all such Equipment and Inventory disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and (B) the Net Cash Proceeds payable or deliverable to Borrowers or Guarantors in respect of any such sale or disposition shall be promptly remitted to Agent or First Lien Agent in immediately available funds and applied to the Obligations and the First Lien Debt in accordance with Section 2.4(c)(i) hereof;
(iii) the issuance and sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the Net Cash Proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the Net Cash Proceeds of the sale and issuance of such Capital Stock shall be paid in accordance with the terms of Sections 2.4 and 6.4 hereof and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition by H&H International to WHX of Cash Equivalents for fair market value in all of the ordinary course issued and outstanding shares of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantorin Indiana Tube Denmark; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, andcontinuing and (B) the Net Cash Proceeds (if any) from such sale or other disposition shall promptly be remitted to Agent or First Lien Agent in immediately available funds for application to the Obligations in the order and manner set forth in Section 2.4(c)(iii) hereof,
(xiivi) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than Fairfield Property and the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower)North Attleboro - Elm Street Property; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms arm’s length transactiontransaction with a Person that is not an Affiliate of a Borrower, except as otherwise permitted under Section 9.12(a) hereof, (C) as of the date Administrative Borrower shall furnish Agent with prior written notice of such sale or disposition (together with such information relating thereto as Agent shall reasonably request), and after giving effect thereto(D) the Net Cash Proceeds payable or deliverable to Borrowers or Guarantors in respect of any such sale or disposition shall be promptly remitted to Agent or First Lien Agent and applied to the Obligations and the First Lien Debt in accordance with Section 2.4(c)(i) hereof.
(vii) the sale or other disposition of any Real Property of any Borrower or Guarantor other than the Fairfield Property and the North Attleboro - Elm Street Property, the aggregate net book value of all provided, that, as to any such sale or other disposition, each of the assets so sold following conditions is satisfied as determined by Agent in good faith: (A) Administrative Borrower shall furnish Agent with prior written notice of such sale or disposed disposition (together with such information relating thereto as Agent shall reasonably request), (B) such sale or other disposition shall be on terms and conditions satisfactory to and approved in writing by Agent and the Required Lenders; (C) the Net Cash Proceeds payable or deliverable to Borrowers and Guarantors in respect of any such sale or other disposition shall be promptly remitted to Agent or First Lien Agent and applied to the Obligations and the First Lien Debt in any fiscal year of Parent shall not exceed $20,000,000accordance with Section 2.4(c)(i) hereof, and (D) as of the date of any such sale or other disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash no Default or Event of Default shall exist or have occurred and be continuing;
(viii) (x) the transfer by any Borrower or Guarantor of any Equipment (other than the Extruder Equipment) to a Subsidiary of Parent organized outside of the United States, Canada or Mexico; provided, that, the aggregate amount of the fair market value of such Equipment does not exceed $500,000, and (y) the transfer by any Borrower or Guarantor of the Extruder Equipment to a Subsidiary of Parent organized outside of the United States, Canada or Mexico;
(ix) the sale of the Capital Stock of an Exempt Subsidiary by the applicable Borrower or Guarantor or the sale or other disposition of all or substantially all of the assets and properties of an Exempt Subsidiary; provided, that, as to any such sale or other disposition, each of the following conditions is satisfied as determined by Agent in good faith: (A) as of the date of any such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; (B) such sale or other disposition shall be on commercially reasonable terms in a bona fide arm’s length transaction with a Person that is not an Affiliate of a Borrower, (C) the applicable Borrowers or Guarantors shall have received cash consideration in respect of such sale or other disposition in an amount of not less than $20,000,000five (5) times TTM EBITDA of the applicable Exempt Subsidiary for the period of twelve (12) consecutive fiscal months ended on the last day of the month immediately preceding the date of such sale or other disposition, (D) Administrative Borrower shall furnish Agent with prior written notice of such sale or other disposition (together with such information relating thereto as Agent shall reasonably request), (E) such sale or disposition Administrative Borrower shall not furnish Agent with projections, in form and substance satisfactory to Agent, that Parent and its Subsidiaries (other than the Specified Subsidiaries), on a consolidated basis, are projected to be in connection compliance with any sale-leaseback transaction the financial covenants in Section 9.17 hereof for the twelve (it being understood that any such sale-leaseback transaction shall be governed by 12) month period ended one year after the terms proposed date of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds consummation of such sale or other disposition, and (F) the Net Cash Proceeds payable or deliverable to Borrowers and Guarantors in respect of any such sale or other disposition shall be promptly be paid remitted to Agent for application or First Lien Agent and applied to the Obligations and the First Lien Debt in accordance with Section 6.4(a2.4(c)(ii) hereof,, and
(x) the sale or other disposition of Precious Metals Inventory by any Borrower or Guarantor to Steel Partners II, L.P. or its affiliates, provided, that, as to any such sale or other disposition, each of the following conditions is satisfied as determined by Agent in good faith: (A) Administrative Borrower shall furnish Agent with prior written notice of such sale or other disposition (together with such information relating thereto as Agent shall reasonably request), (B) such sale or other disposition shall be on terms and conditions satisfactory to and approved in writing by Agent and the Required Lenders; (C) the Net Cash Proceeds payable or deliverable to Borrowers and Guarantors in respect of any such sale or other disposition shall be promptly remitted to Agent or First Lien Agent and applied to the Obligations and the First Lien Debt in accordance with Section 2.4(c)(i) hereof, and (D) as of the date of any such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(c) wind up, liquidate or dissolve dissolve, except that Sumco, any Guarantor, or any Subsidiary of a Borrower or Guarantor that is not itself a Borrower may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of Sumco, such Guarantor or other Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor or such other Subsidiary is a party or may be bound, (iii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor or other Subsidiary shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets; provided, that, Sumco shall not be required to comply with this clause (iii), (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor or such other Subsidiary has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of Sumco, such winding Guarantor or such other Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 2 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:.
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) it, EXCEPT, THAT, any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaGuarantor, providedPROVIDED, thatTHAT, in each case each of the following conditions is satisfied as determined by Agent Lender in good faith: (Ai) Agent Lender shall receive prompt have received not less than ten (10) days' prior written notice of any the intention of such merger Borrower or consolidationGuarantor to so merge or consolidate and such information with respect thereto as Lender may reasonably request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (Ciii) Lender shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions have an Adjusted Net Worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the Adjusted Net Worth of each of the entities involved in such merger immediately prior to such transaction or series of transactions, (v) in the case of a the merger between of any Borrower, such Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is as the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to AgentLender, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, and (Dvi) Agent each Borrower and Guarantor shall promptly receive trueratify and confirm that its guarantees of the Obligations (and in the case of Borrowers, correct and complete copies the guarantees of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior the Obligations of the other Borrowers) shall apply to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;Obligations as assumed by such surviving entity; or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other PersonPerson EXCEPT, except forFOR,
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor so long as (A) any proceeds are paid to Lender and (B) such sales do not have an adverse effect on the operations or business of any Borrower or Guarantor,
(iii) and the sale or other disposition of Real Property other Equipment so long as (A) any proceeds are paid to Lender, (B) such sales do not involve Equipment having an aggregate fair market value in excess of $100,000 for all such Equipment disposed of in any fiscal year of Borrowers, and (C) such sales do not have an adverse effect on the operations or business of Borrowers taken as a whole;
(iv) the issuance and sale of Capital Stock of Waxman Industries consisting of common stock pursuant to the exercise of the existing warrants issued by Waxman Industries in accordance with the terms of the Warrant Agreement, dated as of May 20, 1994, by and between Waxman Industries and the Senior Deferred Coupon Note Trustee, as warrant agent,
(v) the issuance and sale by any Propco; providedBorrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof, thatPROVIDED, THAT, (A) Lender shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, unless otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that limit the right of such Borrower to request or receive Loans or Letter of Credit Accommodations or to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of any Borrower or Guarantor with Lender or are more restrictive or burdensome to such Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) as of the date of such issuance and sale or disposition and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(ivvi) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee a stock option or grant or similar equity plan or 401(k) plans plan of such Borrower or Guarantor for the benefit of its employees, directors and consultants, providedPROVIDED, thatTHAT, (A) in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans option plan or 401(k) plans plan which would result in a Change of Control or other Event of Default, and
Default and (vB) Borrowers shall give Lender prior written notice of the sale, transfer, lease, sublease or material terms of such stock option plan and such other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of businessinformation with respect thereto as Lender may reasonably request,
(vii) leases or subleases the sale and leaseback of the Real Property permitted under Section 9.8(mof Waxman Industries subject to the Mortgage located in Bedford Heights, Ohio, PROVIDED, THAT, as to such sale, each of the following conditions is satisfied as determined by Lender in good faith: (A) any and all proceeds payable to Waxman Industries or 9.12 hereof,
otherwise in connection with such sale shall be paid to Lender for application to the Obligations of Borrowers in such order and manner as Lender shall determine in good faith, (viiiB) Lender shall have received prior written notice of any such sale, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the purchase price and the manner of payment thereof and such other information with respect thereto as Lender may reasonably request, (C) such sale shall be on commercially reasonable prices and terms, (D) the sale amount of the cash payments received by or other disposition on behalf of Cash Equivalents for Waxman Industries on the effective date of the transfer of title to such Real Property shall be at least equal to the greater of $1,250,000 or the fair market value in the ordinary course of business,
such Real Property, (ixE) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form reasonable and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid customary fees and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment expenses incurred in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the such sale of the Capital Stock of and leaseback, Borrowers and Guarantors shall not incur any Propco and the leaseback of Real Property and Equipment owned by liabilities in connection with such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; providedexcept as permitted herein, that, (F) as of the date of such sale, transfer or disposition without limiting any other rights of Lender to establish Availability Reserves and after giving effect theretoin addition to any other Availability Reserves, no Default or Event a permanent Availability Reserve shall be established in the amount of Default shall have occurred and be continuing, and
$1,000,000 (xii) the sale or other disposition of assets of any Borrower or Guarantor not except as Lender may otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borroweragree); provided, that, (AG) as of the date of such sale or disposition and after giving effect theretothereto (and after giving effect to the permanent Availability Reserve described above), no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition Excess Availability shall be on commercially reasonable terms in a bona fide arms length transactionnot less than $3,000,000, and (CH) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value no Event of all Default, or act, condition or event which with notice or passage of the assets so sold time would constitute an Event of Default, shall exist or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition have occurred and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,continuing;
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 2 contracts
Samples: Loan and Security Agreement (Waxman Industries Inc), Loan and Security Agreement (Waxman Industries Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and each Guarantor shall not, and shall not permit any of its Subsidiaries to (and Agents and Lenders do not authorize any Borrower, any Guarantor or any of their respective Subsidiaries to), directly or indirectly:
(a) merge into or with with, consolidate or consolidate amalgamate with any other Person or permit any other Person to merge into or with or consolidate with it except that it; provided, that,
(i) any Subsidiary of any Borrower or any Guarantor that is not another Guarantor or another Borrower may merge with or into or consolidate with any other Subsidiary of any Borrower or any Guarantor (including any Person which becomes a Borrower that is not another Guarantor or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and another Borrower,
(ii) upon the prior written consent of Administrative and Collateral Agent, such consent not to be unreasonably withheld, a domestic Subsidiary of any Borrower (other than another Borrower or Guarantor a Guarantor) may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of and into such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of with such Borrower or Guarantor to being the surviving entity,
(iii) any state in the United States of America, provided, that, in each case each of the following conditions is satisfied Borrower may merge with and into another Borrower so long as determined by Agent in good faith: (A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred occurred, (B) Administrative Borrower provides Administrative and be continuingCollateral Agent not less than 10 Business Days’ prior written notice thereof, (C) in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall Guarantors execute and deliver deliver, prior to or simultaneously with any such other agreementsaction, any and all documents and instruments as agreements requested by Administrative and Collateral Agent may reasonably request in connection therewithto confirm the continuation and preservation of all security interests and liens granted to Administrative and Collateral Agent hereunder, and (D) Administrative and Collateral Agent shall promptly receive have received, true, correct and complete copies of all material agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger to be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), and
(iv) any Guarantor may merge with and into another Guarantor so long as (1) as of the effective date of the merger and after giving effect thereto, no Default or consolidation; providedEvent of Default shall exist or have occurred, further(2) Administrative Borrower provides Administrative and Collateral Agent not less than 10 Business Days’ prior written notice thereof, that(3) Borrowers and Guarantors execute and deliver, prior to or simultaneously with any such action, any and all documents and agreements requested by Administrative and Collateral Agent to confirm the Petro Existing Security Agreement Termination Datecontinuation and preservation of all security interests and liens granted to Administrative and Collateral Agent hereunder, no Petro Company and (4) Administrative and Collateral Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger to be merged filed with or consolidate into any Borrower or Guarantor other than another Petro Company;each appropriate Secretary of State (with a copy as filed promptly after such filing); or
(b) sell, issue, assign, lease, license, transfer, abandon abandon, sell and leaseback or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, so long as (A) as of any proceeds are deposited to the date of such sale or disposition Blocked Account, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms sales do not involve Equipment having an aggregate fair market value in a bona fide arms length transactionexcess of Twenty Million Dollars ($20,000,000) for all such Equipment disposed of in any fiscal year of Borrowers and Guarantors; provided, (C) as however, if such sales of the date Equipment in any fiscal year involve Equipment having an aggregate fair market value of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, 20,000,000 (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereofdifference referred to herein as an “Unused Equipment Sale Allowance”), (E) if the up to $10,000,000 of such Unused Equipment or Real Property to Sale Allowance may be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,succeeding fiscal year;
(iii) the disposition of assets other than Accounts, Inventory or worn-out or obsolete Equipment so long as (A) any proceeds are deposited to the Blocked Account, and (B) such sales do not involve assets having an aggregate fair market value in excess of Twenty Million Dollars ($20,000,000) for all such assets disposed of in any fiscal year of Borrowers and Guarantors;
(iv) the issuance and sale by Parent any Borrower or any Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) such Borrower or such Guarantor after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Administrative and Collateral Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of such issuance and sale by such Borrower or such Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or such Guarantor from such sale, (B) such Borrower or such Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of such Borrower or such Guarantor to request or receive Loans or the right of such Borrower or such Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of such Borrower or such Guarantor with Agents and Lenders or are more restrictive or burdensome to such Borrower or such Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) no Event of Default would occur as a result of such sale or issuance, and (E) except as Administrative and Collateral Agent and the Lenders may otherwise agree in writing, if a Cash Dominion Period existsan Event of Default exists on the date of such issuance and sale or after giving effect thereto, all of the net cash proceeds of the such sale and issuance of such Capital Stock shall promptly be paid to Administrative and Collateral Agent for application to the Obligations in accordance with the terms of Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and;
(v) the sale and leaseback of Equipment so long as (A) any proceeds are deposited to the Blocked Account, and (B) such sale and leaseback transactions do not involve Equipment having an aggregate fair market value in excess of Ten Million Dollars ($10,000,000) for all such Equipment sold and leased in such transactions in any fiscal year of Borrowers and Guarantors;
(vi) the sale, transfer, lease, sublease transfer or other disposition of assets of any by a Borrower or Guarantor to another Borrower or Guarantor,
(vi) so long as at the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock time of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, lease, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect theretodisposition, no Default or Event of Default shall have occurred and be exists or is continuing, ; and
(xiivii) the sale sale, lease, transfer or other disposition of assets by a Guarantor to another Guarantor so long as at the time of any Borrower such sale, lease, transfer or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect theretodisposition, no Default or Event of Default shall have occurred and be exists or is continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(c) wind up, liquidate or dissolve except that in the case of Subsidiaries of any Borrower or any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to that are not a Borrower or another a Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything ; provided, however, any Borrower, any Guarantor or any of their respective Subsidiaries may enter into agreements to effectuate any transaction otherwise prohibited by this Section 9.7 so long as (i) concurrently with or promptly after entering into any such agreement, such Borrower, such Guarantor or such Subsidiary gives Administrative and Collateral Agent written notice thereof to the contrary contained extent not prohibited by any confidentiality provisions relating thereto and binding on such Borrower, such Guarantor or such Subsidiary, and (ii) the consummation of transactions contemplated by any such agreement is conditioned upon obtaining the consent of Administrative and Collateral Agent and such Lenders as may be required pursuant to Section 11.3 hereof or repaying the Obligations in full and terminating this Agreement in accordance with its terms. To the extent Administrative and Collateral Agent and any Lenders whose consent is required pursuant to Section 11.3 hereof waive the provisions of this Section 9.7 with respect to the sale of any Collateral, or any Collateral is sold to a Person as permitted by this Section 9.7, to the extent the proceeds of any such sale are remitted to Administrative and Collateral Agent pursuant to all applicable terms of this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as such Collateral shall be sold free and clear of the date liens created by the Financing Agreements (and, in the event that such Collateral consists of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent all of the Maximum Creditcapital stock of a Person that is a Guarantor, such Person, and the assets of such Person, shall be released from the Financing Agreements to which it is a party), and Administrative and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower Borrowers and Guarantor Guarantors shall not and shall not permit any Subsidiary to, directly or indirectly:
, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that it; provided, however, upon prior written notice to Agent:
(i) any Borrower or Guarantor a Subsidiary (other than a Borrower) may merge into or with or into or consolidate with any other or dissolve or liquidate into another Subsidiary;
(ii) Original Parent may merge into Parent on the Closing Date in accordance with the Valor Merger Agreement;
(iii) a Subsidiary may merge into or with or consolidate with or dissolve or liquidate into a Borrower or Guarantor (including any Person which becomes other than Parent), and a Borrower may merge into or with or consolidate with or dissolve or liquidate into another Borrower so long as (A) a Borrower (in the case of any such event involving a Borrower) or Guarantor in connection (other than Parent) is the surviving entity with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) respect thereto and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to a corporation any Borrower or limited liability company or changing Guarantor, on the jurisdiction assets of organization of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to any state in the United States of America, provided, that, in each case each of the following conditions is satisfied a Borrower or Guarantor; and
(iv) a Guarantor or Borrower may merge into or with or consolidate with or dissolve or liquidate into a Borrower so long as determined by Agent in good faith: (A) Agent shall receive prompt written notice a Borrower is the surviving entity with respect thereto and continues to be an organization of any the type, domiciled in the state and bearing the same corporate name as existed prior to such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingthen exists or would occur, (C) in no liens, other than those permitted under the case terms of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements this Agreement with regard to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, on the assets of such Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewiththen exist, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employeeswould not, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except be liable for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum CreditBorrower.
Appears in 2 contracts
Samples: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any Restricted Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into INTO OR WITH OR CONSOLIDATE WITH IT, EXCEPT, THAT, any Borrower, Guarantor or with or consolidate with it except that (i) any Borrower or Guarantor other Restricted Subsidiary may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaMERGE WITH AND INTO OR CONSOLIDATE WITH ANY OTHER BORROWER, providedGUARANTOR OR OTHER RESTRICTED SUBSIDIARY, thatPROVIDED, in each case THAT, each of the following conditions is satisfied as determined by Agent in good faithLender: (Ai) Agent Lender shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such merger Borrower or consolidationGuarantor to so merge or consolidate and such information with respect thereto as Lender may request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (iii) Lender shall have occurred received true, correct and be continuingcomplete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (Civ) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company entity shall have immediately upon the effectiveness of the merger expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements confirm in writing pursuant to which such Borrower or Guarantor is a partyan agreement, in form and substance reasonably satisfactory to AgentLender, its continuing liability in respect of the Obligations and in the case of a merger between any Borrower or Guarantor Financing Agreements and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, (v) the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions have an Adjusted Net Worth (Dincluding, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) Agent equal to or greater than the Adjusted Net Worth of the entities involved in such merger or consolidation immediately prior to such transaction or series of transactions (as reduced by any reasonable costs and expenses directly related to such merger), (vi) if the merger or consolidation involves a Borrower with a Restricted Subsidiary, such Borrower shall promptly receive truebe the surviving entity or in the case of a merger or consolidation between Timet and THT, correct Timet shall be the surviving corporation, (vii) such merger or consolidation shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and complete copies shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower, Guarantor or such other Restricted Subsidiary is a party or may be bound, (viii) such merger or consolidation shall be done in accordance with the requirements of all material agreementsapplicable laws and regulations, documents and instruments relating to (ix) effective upon such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of Guarantor or other Restricted Subsidiary involved in such Guarantor merger or consolidation shall be duly and validly transferred and assigned to the Borrower in the case of any merger or consolidation involving a Borrower Borrower, or another Guarantorotherwise to the surviving entity, free and clear of any liens, restrictions or encumbrances other than the security interests and liens of Lender or other security interests expressly permitted hereunder (ii) Agent and Lender shall have received all such evidence thereof as Lender may require), (x) Lender shall have received such deeds, assignments or other agreements as Lender may request to evidence and confirm the transfer of such assets to the surviving entity of such merger or consolidation, (xi) to the extent the assets transferred are of a Guarantor, the Borrower, Guarantor or other Restricted Subsidiary shall acquire such assets subject to the security interests and liens of Lender which shall continue in full force and effect as to the assets transferred and upon Lender's request, the Borrower, Guarantor or other Restricted Subsidiary shall acknowledge the same in writing pursuant to an agreement in form and substance satisfactory to Lender and shall execute and deliver to Lender such agreements, documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or instruments as are otherwise required to effectuate such winding upLender may require (including guarantees, liquidation or dissolutionsecurity agreements, UCC and PPSA financing statements), (iiixii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation merger or dissolution, consolidation or otherwise become liable in respect of any obligations obligation or liabilities of the entity that Person with whom it is winding up, liquidating merging or dissolvingconsolidating, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice hereunder and such obligations and liabilities are not prohibited under this Agreement or any of any such winding up, liquidation or dissolutionthe other Financing Agreements, and (vxiii) as each Obligor shall ratify and confirm that its guarantees of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default Obligations shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application apply to the Obligations in accordance with Section 6.4(a) hereof, (v) as assumed by such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000surviving entity; andor
(eb) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreementsell, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sellassign, lease, transfer, assign, license, abandon or otherwise dispose of any Capital StockStock to any OTHER PERSON OR ANY OF ITS ASSETS TO ANY OTHER PERSON, Indebtedness EXCEPT FOR
(i) sales of Inventory in the ordinary course of business (including sales of Inventory to Unrestricted Subsidiaries and the Timet Affiliates, but subject to Section 9.12 hereof);
(ii) the disposition of worn-out or other assets obsolete Equipment so long as (A) any proceeds are paid to Lender for application to the Obligations (without any permanent reduction in the Maximum Credit as a Petro Company unlessresult of such application) and (B) such sales do not involve Equipment having an appraised or derly liquidation value (as set foxxx xn the most recent acceptable appraisal thereof received by Lender), as of or in the date case of any such saleEquipment which is not included in such appraisal, leasehaving a fair market value, transfer, assignment, license, abandonment or disposition, no Default or Event in the aggregate in excess of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent $750,000 for all such Equipment disposed of the Maximum Credit.in any fiscal year of Borrowers;
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any Subsidiary to (and Lender does not authorize Borrower to), directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor Obligor incorporated in a jurisdiction in the United States may merge with or and into or consolidate with Borrower or any other Subsidiary of Borrower or Guarantor (including any Person which becomes incorporated in a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state jurisdiction in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaStates, provided, that, in each case each of the following conditions is satisfied as determined by Agent Lender in good faith: (Ai) Agent Lender shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Lender, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Lender shall have received such other information with respect to such merger or consolidation as Lender may reasonably request within such ten (10) Business Day period, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Lender shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to AgentLender, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Obligors shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, (vi) in the case of a merger or consolidation of a Subsidiary with Borrower, Borrower shall be the surviving corporation and the amount of the liabilities (Dcontingent or otherwise) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating acquired by Borrower pursuant to such merger or consolidationconsolidation shall not exceed the value of the assets acquired pursuant thereto and shall otherwise be acceptable to Lender; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or so long as (A) any proceeds are paid to Lender and (B) such sales do not involve Equipment no longer used or useful having an aggregate fair market value in excess of $200,000 for all such Equipment disposed of in any fiscal year of Borrower,
(iii) the business issuance and sale by Borrower of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any PropcoBorrower after the date hereof; provided, that, (A) Lender shall have received not less than ten (10) Business Days prior written notice of such issuance and sale by Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower from such sale, (B) Borrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or the right of Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower with Lender or are more restrictive or burdensome to Borrower than the terms of any Capital Stock in effect on the date hereof, (D) except as Lender may otherwise agree in writing, all of the proceeds from such sale and issuance shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine, and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) subject to Section 9.12 hereof, the issuance of Capital Stock sale, issuance, assignment, lease, licensing, transfer or other disposition of any assets by a Subsidiary of Borrower to Borrower or Guarantor consisting a wholly-owned Subsidiary of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, (provided, that, any security interest and lien of Lender with respect to the assets so sold, assigned, leased, licensed, transferred or otherwise disposed of shall continue in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant all respects as to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Defaultassets as acquired by Borrower), and
(v) the sale, transfer, lease, sublease or other disposition of assets cash and Cash Equivalents by Borrower in the ordinary course of business from time to time held in the Cash Management Account of Borrower the proceeds of which may be used to purchase other Cash Equivalents to be held in the Cash Management Account or for deposit in the operating accounts of Borrower; provided, that, at any Borrower or Guarantor time on and after Lender has notified the banks at which the Blocked Accounts are maintained to another Borrower or Guarantorremit funds therein to the Lender Payment Account the funds held in such account shall be limited as provided in Section 9.10(b) hereof,
(vi) the grant of non-exclusive licenses of Intellectual Property as to any Cash Equivalents other than those held in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) Cash Management Account as provided for above, the sale sale, exchange or other disposition from time to time of such Cash Equivalents for fair market value so long as the proceeds thereof are either immediately used to purchase other Cash Equivalents and continue to be held in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies an investment account subject to an Excluded Subsidiary of Investment Property Control Agreement or are withdrawn from such investment accountant to the franchise agreements between any of the Petro Companies extent permitted under, and its franchisees; providedin accordance with, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Investment Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application Control Agreement applicable to the Obligations investment account in accordance with Section 6.4(a) hereof,which such Cash Equivalents were held;
(c) wind up, liquidate or dissolve dissolve, except that any Guarantor a Subsidiary of Borrower may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which Borrower or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary (as the case may be) shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interests and liens of Lender or other security interests expressly permitted hereunder (and Lender shall have received such evidence thereof as Lender may require), (iiiv) Agent Lender shall have received all documents and agreements that any of Borrower or Guarantor has such Subsidiary as filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor Obligor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunderhereunder or such obligations or liabilities are not prohibited under this Agreement or any of the other Financing Agreements, (ivvi) Agent Lender shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, (vii) Lender shall have received such deeds, assignments or other agreements as Lender may request to evidence and confirm the transfer of such assets to Borrower, (viii) to the extent the assets transferred are of an Obligor, Borrower shall acquire such assets subject to the security interests and liens of Lender which shall continue in full force and effect as to the assets transferred and upon Lender's request, Borrower shall acknowledge the same in writing pursuant to an agreement in form and substance satisfactory to Lender and shall execute and deliver to Lender such agreements, documents and instruments as Lender may require (including UCC and PPSA financing statements), and (vix) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to foregoing that will occur during the contrary contained in term of this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Hirsch International Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (other than any Borrower, and including any Person which such Subsidiary that only becomes a Borrower Subsidiary after giving effect to such merger or Guarantor in connection with a Permitted Acquisition consolidation subject to the terms of Section 9.21(d) hereofconditions set forth herein) and (ii) any Borrower or Guarantor may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Borrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: Agent:
(Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor copy as filed promptly after such filing), and such newly formed corporation or limited liability company where such corporation or limited liability company is (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any PropcoPermitted Dispositions; provided, that, in the event of a sale of Real Property by any Borrower or Guarantor, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such sale by such Borrower or Guarantor, which notice shall specify the parties to whom such Real Property is to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the sale of such Real Property and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) the terms and conditions of the sale thereof shall be acceptable to Agent, (C) except as Agent may otherwise agree in writing, all of the proceeds of the sale of such Real Property shall be paid to Agent for application to the Obligations in accordance with the terms hereof and (D) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred occurred,
(ii) the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be continuingsold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such sale Borrower or disposition Guarantor shall not be on commercially reasonable terms required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in a bona fide arms length transactionrespect thereof, except as otherwise permitted in Section 9.11 hereof, (C) as the terms of such Capital Stock, and the terms and conditions of the date of such purchase and sale or disposition and after giving effect theretothereof, Excess Availability plus Unrestricted Cash shall not be less include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than $20,000,000the terms of any Capital Stock in effect on the date hereof, (D) such sale or disposition shall not be except as Agent may otherwise agree in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existswriting, all of the net cash proceeds of the sale and issuance of such sale or disposition Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(athe terms hereof and (E) hereof,
(iii) the issuance and sale by Parent as of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period existsafter giving effect thereto, all no Default or Event of the net cash proceeds of the sale and issuance of such Capital Stock Default shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofexist or have occurred,
(iviii) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to a restricted stock award, an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(viv) the sale, transfer, lease, sublease or other disposition of assets of by any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of any Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale leased by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another such Borrower or Guarantor; provided, that, Agent shall have receivedas to any such sublease, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition sublease shall be on commercially reasonable prices and terms in a bona fide arms arm's length transaction, and
(Cv) as Licenses and sublicenses of the date of such sale Intellectual Property by a Borrower or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold Guarantor to another Borrower or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included Guarantor in the Borrowing Base or if a Cash Dominion Period exists, all ordinary course of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance business and consistent with Section 6.4(a) hereof,past practices.
(c) wind up, liquidate or dissolve except that any Guarantor or Subsidiary of Parent (other than a Borrower) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor or other Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor or other Subsidiary shall be duly and validly transferred and assigned to its shareholders, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower or another GuarantorBorrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor or Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with with, consolidate or consolidate amalgamate with any other Person or permit any other Person to merge into or with or consolidate with it except that EXCEPT THAT:
(i) any Borrower or Guarantor Subsidiary of Parent may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaParent, providedPROVIDED, thatTHAT, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge, consolidate or amalgamate, which notice shall set forth in reasonable detail reasonably satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging, consolidating, or amalgamating and the material agreements and documents relating to such merger, consolidation or amalgamation, (B) Agent shall have received such other information with respect to such merger or consolidationconsolidation as Agent may reasonably request, (BC) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (CD) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State or other applicable Governmental Authority (with a copy as filed promptly after such filing), (E) if the merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is with a Borrower, the surviving corporation or limited liability companyof such merger shall be such Borrower, such otherwise with respect to any other merger, the surviving corporation or limited liability company shall have expressly confirmedconfirm, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor (F) Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and the mergers, consolidations or amalgamations contemplated hereby,
(Dii) Agent shall promptly receive trueany Borrower or Guarantor organized under the laws of the United States of America may merge or consolidate with the Krane Group; PROVIDED, correct and complete copies of all material agreementsTHAT, documents and instruments relating the conditions set forth on Schedule 0.0 (a) hereto with respect to such merger or consolidation; providedconsolidation are satisfied as determined by Agent in good faith, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with and
(iii) Reliant Acquisition Corp. may merge or consolidate into any Borrower with Reliant Interactive Media Corp., PROVIDED, THAT, the conditions set forth on Schedule 9.7 (b) hereto with respect to such merger or Guarantor other than another Petro Companyconsolidation are satisfied as determined by Agent in good faith;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except forEXCEPT FOR
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of the US Dollar Equivalent of $250,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and
(including worn-out iii) the issuance and sale by any Borrower or obsolete Equipment Guarantor of Capital Stock of such Borrower or Equipment no longer used Guarantor after the date hereof; PROVIDED, THAT, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or useful Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the business terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or Guarantorreceive Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) and except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of Real Property or the such Capital Stock of any Propco; providedshall be paid to Agent for application to the Obligations, thatwhether or not then due, in accordance with Section 2.4 hereof, and (AE) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, providedPROVIDED, thatTHAT, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary all of the franchise agreements between any assets of the Petro Companies and its franchisees; Clinical Results, Inc., provided, that, as of the date of such sale, transfer sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and
(xii) the and any and all net proceeds payable or delivered to Parent in respect of such sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transactionpaid or delivered, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets caused to be sold paid or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existsdelivered, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent Agent, for application to the Obligations in accordance with Section 6.4(a) hereofoutstanding principal amount of the Revolving Loans, which may be reborrowed,
(c) wind up, liquidate or dissolve except that any Guarantor Bioslim, Inc. and Clinical Results, Inc., each may wind up, liquidate and dissolve, providedPROVIDED, thatTHAT, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which any Borrower, Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary shall be duly and validly transferred and assigned to a Borrower or another GuarantorGuarantor free and clear of any liens, restrictions or encumbrances other than the security interests and liens of Agent or other security interests, liens, restrictions or encumbrances expressly permitted hereunder (and Agent shall have received such evidence thereof as Agent may reasonably require), (iiiv) Agent shall have received copies of all documents and agreements that any Borrower or Guarantor has of such Subsidiary to be filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunderSubsidiary, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such winding Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, (vii) Agent shall have received copies of such deeds, assignments or other agreements as Agent ay reasonably request to evidence and confirm the transfer of such assets from such Subsidiary which is liquidating to a Borrower, and (vviii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default act, condition or event which, with notice or passage of time or both, would constitute an Event of Default, or Event of Default shall exist or have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Thane International Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any other Person, except, that, (i) any a Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor, and any Non-Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor Subsidiary may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets Borrower, Guarantor or liabilities solely for the purpose of either changing the type of organization of such Borrower or any other Non-Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, Subsidiary; provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithAgent: (A) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such merger Borrower, Guarantor or consolidationNon-Guarantor Subsidiary to so merge or consolidate and such information with respect thereto as Agent may request, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (C) promptly upon Agent's request, Borrowers and Guarantors shall furnish, or cause to be furnished to Agent, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the certificate or certificates of merger or consolidation as filed with each appropriate Secretary of State, (D) in the case of a merger between or consolidation involving any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is Guarantor, promptly upon Agent's request, the surviving corporation entity shall immediately upon the effectiveness of the merger or limited liability company, such corporation or limited liability company shall have consolidation expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements confirm in writing pursuant to which such Borrower or Guarantor is a partyan agreement, in form and substance reasonably satisfactory to Agent, its continuing liability in respect of the Obligations and in the case of a merger between any Borrower or Guarantor Financing Agreements and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, (E) in the case of a merger or consolidation involving any Borrower or Guarantor, promptly upon Agent's request, each Borrower and Guarantor shall ratify and confirm that their respective guarantees of the Obligations shall apply to the Obligations as assumed by such surviving entity, (F) in the case of a merger or consolidation involving any Borrower or Guarantor, the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions have a net worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the net worth it had immediately prior to such transaction or series of transactions, and (DG) Agent no Borrower or Guarantor shall promptly receive truebecome obligated with respect to any Indebtedness, correct and complete copies nor any of all material agreementsits property become subject to any security interest, documents and instruments relating lien, claim or other encumbrance, pursuant to such merger or consolidation; consolidation unless such Borrower or Guarantor could incur such Indebtedness or create such security interest, lien, claim or other encumbrance hereunder or under the other Financing Agreements and (ii) a Guarantor may merge with and into any other Guarantor or Non-Guarantor Subsidiary as set forth on Schedule 9.7 hereto, provided, further, that, prior to the Petro Existing Security Agreement Termination Datesuch mergers shall occur by no later than December 31, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;1997, except as Agent may otherwise agree; or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale sales or other disposition dispositions by Borrowers and Guarantors of Equipment (including worn-out assets in connection with the closing or obsolete Equipment sale of a retail store location of a Borrower or Equipment no longer used or useful Guarantor in the ordinary course of business which consist of any Borrower or Guarantor) leasehold interests in the premises of such store, the equipment and fixtures located at such premises and the sale books and records relating exclusively and directly to the operations of Real Property or the Capital Stock of any Propcosuch store; provided, that, as to each and all such sales, (A) as of on the date of such sale or disposition of, and after giving effect theretoto, any such sale, in any fiscal year, the number of retail store locations closed or sold by Borrowers and Guarantors minus the number of retail stores opened by Borrowers and Guarantors in such fiscal year, whether as relocations of closed stores or new retail store locations, shall not exceed the amount equal to ten percent (10%) of the number of retail store locations of Borrowers and Guarantors as of the end of the immediately preceding fiscal year, but in no Default event shall the retail store locations closed or Event sold by Borrowers and Guarantors in any fiscal year have accounted for more than $150,000,000 of Default shall have occurred all sales of Borrowers and be continuingGuarantors in the immediately preceding fiscal year, (B) at any time after Agent's request, thereafter Agent must have received not less than ten (10) Business Days prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or disposition shall other disposition, the assets to be on commercially reasonable terms in a bona fide arms length transactionsold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale or other disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash no Event of Default, or act, condition or event which with notice or passage of time would constitute an Event of Default, shall not exist or have occurred and be less than $20,000,000continuing, (D) such sale or other disposition shall not be on commercially reasonable prices and terms in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof)a bona fide arm's length transaction, and (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base event Agent shall have the right to instruct the depository banks at which the Concentration Accounts are maintained to transfer the funds received or if a Cash Dominion Period exists, all deposited into any of the Concentration Accounts to the Payment Account, any and all net cash proceeds in respect of such sale or other disposition of Collateral or reasonably attributable to Collateral shall promptly be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the terms of this Agreement either, at Agent's option, for application to the Obligations in accordance with Section 6.4(athe terms hereof (except to the extent such proceeds reflect payment in respect of Indebtedness secured by a properly perfected first priority security interest in the assets sold, in which case, such proceeds shall be applied to such indebtedness secured thereby) hereofor to be held by Agent for itself and the ratable benefit of Lenders as cash collateral for the Obligations on terms and conditions acceptable to Agent,
(iii) sales or other dispositions by Borrowers and Guarantors of assets (other than the issuance Collateral) in addition to sales or other dispositions permitted under Section 9.7(b)(ii) above or Sections 9.7(b)(iv), (v), (vi) and (vii) below; provided, that, as to each and all such sales or other dispositions, each of the following conditions is satisfied, as determined by Agent: (A) the consideration received in connection with any such sale or other disposition shall be at least equal to the fair market value of such assets, (B) the fair market value of all such assets so sold by Parent Borrowers, Guarantors and their Subsidiaries in a single transaction or series of related transactions shall not exceed $5,000,000 in the aggregate in any fiscal year, or $20,000,000 in the aggregate during the term of this Agreement, for all such assets so sold by Borrowers and Guarantors, (C) any and all net cash proceeds payable or delivered to any Borrower or Guarantor from such sales or other dispositions shall be used to repay any Indebtedness which is secured by a purchase money security interest on the asset so sold or otherwise disposed of, and any remaining proceeds shall be either (1) retained by Borrowers and Guarantors if at the time of receipt of such proceeds no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, or (2) if an Event of Default, or such other act, condition or event, shall then exist or have occurred and be continuing, paid or delivered, or caused to be paid or delivered, to Agent either, at Agent's option, for application to the Obligations or to be held by Agent for itself and the ratable benefit of Lenders as cash collateral for the Obligations on terms and conditions acceptable to Agent, (D) Agent shall have received not less than ten (10) Business Days prior written notice of any such sale or other disposition of assets having a fair market value in excess of $500,000, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (E) to the extent that the assets sold or otherwise disposed of consist of any portion of real property or equipment related thereto, the sale thereof shall not, in the good faith determination of Agent, have an adverse affect on the value, or the ability to use the remaining portion of the real property in a manner consistent with current uses thereof or the ability of Agent to realize on any of the Collateral, and (F) as of the date of such sale and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time would constitute an Event of Default, shall exist or have occurred and be continuing,
(iv) the grant by Borrowers, Guarantors and their Subsidiaries of a non-exclusive license to any person for the use of any trademarks or other Proprietary Rights, provided, that, as to each and all of such licenses, each of the following conditions is satisfied, (A) at the time of the grant of the license and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (B) the rights of such licensee in the trademarks or other Proprietary Rights subject to such license shall be subject and subordinate in all respects to the rights of Agent therein, and (C) Agent shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof, which shall be acceptable to Agent and shall expressly provide for the subordination required under clause (B) above,
(v) the disposition through the abandonment, cancellation or other failure to maintain any trademark or other Proprietary Rights which are no longer used or useful in the business of Borrowers, Guarantors or their Subsidiaries and are not otherwise material to the businesses of Borrowers, Guarantors or their Subsidiaries;
(vi) the sale, assignment or transfer by Borrowers or Guarantors of any of the Capital Stock of Parent Borrowers, Guarantors or their Subsidiaries to one of the other Borrowers, Guarantors or Subsidiaries, provided, that, as to each and all of such transfers, each of the following conditions is satisfied, as determined by Agent: (A) Agent shall have received not less than ten (10) Business Days prior written notice of such transfer, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such transfer, the Capital Stock which is being transferred and such other than Disqualified Capital Stockinformation with respect thereto as Agent may reasonably request, (B) as of the date of such transfer and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing;
(vii) the distribution of assets of Edison and its Subsidiaries to the extent required by the Plan (as in effect on the date hereof) and the sale of assets from the Funding Escrow Account as contemplated by the Plan (as in effect on the date hereof);
(c) form or acquire any Subsidiaries, except, that, (i) Borrowers and Guarantors may acquire Subsidiaries to the extent permitted under Section 9.7(b)(vi) above, (ii) Borrowers and Guarantors may form or acquire Subsidiaries (including any limited liability company) after the date hereof; provided, that, each of the following conditions is satisfied, as determined by Agent:
(A) if a Cash Dominion Period existspromptly upon such formation or acquisition, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors shall cause any such Subsidiary to execute and consultants, provided, that, in no event shall such Borrower or Guarantor be required deliver to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have receivedAgent, in form and substance reasonably satisfactory to Agent Agent: (A1) evidence that Agent has an absolute and unconditional guarantee of payment of all of the Obligations, (2) a valid general security agreement granting to Agent, for itself and perfected ratable benefit of Lenders, a first priority and only security interest in and lien upon all of the assets and properties of such Capital Stock Subsidiary, (3) related Uniform Commercial Code financing statements, and (B4) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause require, (A) above,
(xB) the sale amount of Real Estate and Equipment the investment by such Borrower or Guarantor in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of such Subsidiary and any Propco and the leaseback of Real Property and Equipment owned other amounts paid by such Propco),
(xi) Borrower or Guarantor to or for the sale, transfer formation or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date acquisition of such sale, transfer or disposition Subsidiary shall not exceed the amount permitted under Section 9.10 hereof and after giving effect thereto, (C) no Default or Event of Default Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, and
and (xiiiii) the sale Borrowers, Guarantors and Non-Guarantor Subsidiaries may form or acquire other disposition of assets of any Borrower or Non-Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of Subsidiaries after the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied, as determined by Agent:
(iA) effective upon such winding up, liquidation or dissolution, all of the assets and properties Borrowers shall have given Agent notice of such formation or acquisition not later than the effective date thereof and (B) no payment of any amount, transfer of any property (other than de minimis amounts required under applicable state corporate law for the commencement of corporate existence not to exceed $75,000 in the aggregate for all such Non-Guarantor shall be duly and validly transferred and assigned to a Borrower Subsidiaries) or another Guarantor, (ii) Agent incurrence of any Indebtedness shall have received all documents and agreements that been required from or by any Borrower of Borrowers or Guarantor has filed Guarantors in connection with such formation or acquisition or otherwise at any Governmental Authority time be made to or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result on behalf of such winding up, liquidation Non-Guarantor Subsidiaries (except for loans by Borrowers or dissolution, or otherwise become liable in respect of any obligations or liabilities of Guarantors to Non-Guarantor Subsidiaries to the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly extent permitted hereunder, (ivunder Section 9.10(h) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;hereof); or
(d) enter into wind up, liquidate or dissolve, except, (i) in connection with any salemerger or consolidation permitted under Section 9.7(a) hereof and (ii) any Guarantor or Non-leaseback transactionGuarantor Subsidiary may wind up, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco)liquidate or dissolve; provided, that, each of the following conditions is satisfied: (iA) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received truenot less than ten (10) Business Days prior written notice of the intention to wind up, correct and complete copies liquidate or dissolve such Guarantor or Non-Guarantor Subsidiary, (B) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all material agreementsapplicable laws and regulations, documents (C) effective upon such winding up, liquidation or dissolution all of the assets and instruments related properties of such Guarantor or Non-Guarantor Subsidiary shall be duly and validly transferred and assigned to any Borrower or other Guarantor (or in the case of a Non- Guarantor Subsidiary, also to another Non-Guarantor Subsidiary), free and clear of any liens, restrictions or encumbrances, (D) after giving effect to such sale-leasebackwinding up, liquidation or dissolution, none of Borrowers or Guarantors shall have any liabilities or obligations as a result thereof, and (iiiE) as of the date of the consummation of such sale-leaseback winding up, liquidation or dissolution, and after giving effect thereto, no Default or Event of Default Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; andor
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Edison Brothers Stores Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any wholly-owned Subsidiary of a Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes wholly-owned Subsidiary of a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Borrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Borrowers shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its other assets (other than Real Property) to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $250,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and
(iii) the issuance and sale by any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propcosuch Borrower after the date hereof; provided, that, (A) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers with Agent and Lenders, (B) except as Agent may otherwise agree in writing, all of the Net Cash Proceeds of the sale and issuance of such Capital Stock (other than proceeds of Capital Stock to be used for the exchange of Remaining Existing Senior Subordinated Notes in accordance with Section 9.10(i) hereof) shall be paid to Agent for application to the Obligations in accordance with Section 6.4 of this Agreement, (C) after giving effect to such issuance and sale, no Change of Control shall occur and (D) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the issuance and sale by LPC of Capital Stock (including, without limitation, in connection with the exercise of warrants to purchase such Capital Stock) pursuant to and in accordance with the Warrant Agent Agreement and the Exchange Agreement as in effect on the date hereof; provided, that, (A) except as Agent may otherwise agree in writing, all of the Net Cash Proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in accordance with Section 6.4 of this Agreement and (B) after giving effect to any such issuance and sale, transfer, lease, sublease or other disposition no Change of assets of any Borrower or Guarantor to another Borrower or Guarantor,Control shall occur.
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for Collateral not otherwise permitted above so long as such sales or other dispositions do not involve Collateral having an aggregate fair market value in the ordinary course excess of business,
(ix) the issuance and sale by $200,000 for all such Collateral disposed of in any Borrower (other than Parent) or Guarantor fiscal year of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; Borrowers, provided, that, (A) Agent shall have received, in form and substance reasonably satisfactory to Agent received not less than five (A5) evidence that Agent has a valid and perfected first priority security interest in and lien upon all Business Days' prior written notice of such Capital Stock sale or disposition and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of any such salesale or disposition, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale exist or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, ,
(Bvii) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition intercompany loans and after giving effect thereto, dividend payments to the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed extent permitted by the terms of Section 9.7(b)(x) hereofSections 9.10(g), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof9.11 and 9.12,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Creditforegoing except if conditioned on approval by Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (A) Agent shall receive have received prompt written notice of any such merger or consolidation, consolidation and (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default shall have occurred and be continuing, and (ii) any wholly-owned Subsidiary of Parent (other than a Borrower) may merge or consolidate with any other wholly-owned Subsidiary of Parent (other than any Borrower), provided, that, each of the following conditions is satisfied: (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to the Required Lenders, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (B) Agent shall have received such other information with respect to such merger or consolidation as Agent (acting at the direction of the Required Lenders) may reasonably request, (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default shall have occurred and be continuing, (CD) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (E) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agentthe Required Lenders, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent (acting at the direction of the Required Lenders) may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the issuance and sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of by any Borrower or Guarantor) and the sale Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof, including a pursuant to a Qualified Public Offering; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default Agent shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall received not be less than $20,000,000, ten (D10) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the Net Cash Proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof prior to the date that is 60 days after the Maturity Date if a Cash Dominion Period existsthe Obligations have paid and satisfied in full by such date, all of except as otherwise permitted in Section 9.11 hereof, and (C) the net cash proceeds of the sale and issuance terms of such Capital Stock issued by a Borrower or Guarantor (other than Parent), and the terms and conditions of the purchase and sale thereof, shall promptly be paid not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit (each such term as defined in the Revolving Credit Agreement) or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or adversely affect the arrangements of Borrowers and Guarantors with Agent for application and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the Obligations terms of any Capital Stock in accordance with Section 6.4(a) effect on the date hereof,
(iviii) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(iv) the assets set forth on Schedule 9.7,
(v) the saleabandonment of Intellectual Property that is, transferin the reasonable judgment of Parent, leaseno longer valuable in any material respect or economically practicable to maintain or useful in the conduct of the business of Borrowers and Guarantors, sublease taken as a whole,
(vi) the sale or other disposition of assets of any Borrower or Guarantor to another (including Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor,
) other than Accounts, Inventory, Capital Stock of any Subsidiary of Parent, and Intellectual Property (other than Intellectual Property that is embedded and/or integrated with the disposition of such other assets otherwise permitted under this clause (vi)), so long as such sales or dispositions are (i) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
an aggregate amount not to exceed $7,500,000 per each calendar year, (viiii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (Biii) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, to such disposition no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent (acting at the direction of the Required Lenders) may reasonably require) and liens permitted hereunder and Agent shall have received such deeds, assignments or other agreements as Agent (acting at the direction of the Required Lenders) may reasonably request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower, (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree binding agreement to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower), provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,;
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $500,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition all proceeds thereof shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid remitted directly to Agent for application to the Obligations Loans in accordance with Section 6.4(a) hereof,this Agreement;
(iii) the issuance and sale by Parent any Borrower or Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) such Borrower or Guarantor after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) if a Cash Dominion Period existssuch Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(asuch order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (E) hereof,as of the date of such issuance and sale and after giving effect thereto, no Change of Control or other Default or Event of Default shall exist or have occurred; and
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(c) wind up, liquidate or dissolve dissolve, except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, the Senior Notes Indenture or any other indenture, or any mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Guarantor, (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything Without limiting the generality of the provisions of Section 9.7(b), a Borrower which is the owner of any particular Inventory, as reported to the contrary contained Agent in this Agreementan Inventory report delivered to Agent pursuant to Section 7.1(a), no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon shall not sell or otherwise dispose of any Capital Stock, Indebtedness or other assets transfer title to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal Inventory to the thirty-five (35%) percent of the Maximum Creditanother Borrower.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly- owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower), provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $250,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingcontinuing except, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as that none of the date foregoing conditions shall apply to Parent's issuance of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property Capital Stock to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all holders of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application Senior Subordinated Notes pursuant to the Obligations in accordance with Section 6.4(a) hereof,
(iii) exercise of the "Warrants" or issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital "PIK Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all " to holders of the net cash proceeds Senior Subordinated Notes (as such quoted terms are defined in the Subordination Agreement, dated of even date herewith, by and among Agent and the holders of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofSenior Subordinated Notes),
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require), (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunderhereunder or such obligations or liabilities are not prohibited under this Agreement or any of the other Financing Agreements, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, (vii) Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to the parent corporation of such Guarantor and (vviii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Allou Health & Beauty Care Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower), provided, that, in each case each of the following conditions is satisfied as determined by Agent Lender in good faith: (Ai) Agent Lender shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Lender, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Lender shall have received such other information with respect to such merger or consolidation as Lender may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingexist, (Civ) in Lender shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to AgentLender, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $200,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Lender may otherwise agree, and
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Lender shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Lender or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an existing or future employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco Conversion Shares and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofTwincraft Consideration Shares,
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Lender (and Lender shall have received such evidence thereof as Lender may require) and Lender shall have received such deeds, assignments or other agreements as Lender may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower, (iiiv) Agent Lender shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent Lender shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that that
(i) any Borrower or Guarantor Foreign Subsidiary may merge with or into or consolidate with and into any other Borrower Foreign Subsidiary or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Person, provided, that, in each case as to any such merger or consolidation, each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (A) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Foreign Subsidiary to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the Foreign Subsidiary that is merging or consolidating, the person with whom such Foreign Subsidiary is merging or consolidating and the material agreements and documents relating to such merger or consolidation, (B) a Foreign Subsidiary shall be the surviving entity of such merger or consolidation, (C) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (D) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing, and (E) in no event shall any Borrower or Guarantor make, or be required to make, any payment or incur any obligation or liability in connection with such merger or consolidation or take any other action which is otherwise prohibited hereunder;
(ii) any Borrower may merge or consolidate with and into any other Borrower and Guarantor may merge or consolidate with and into any Borrower, provided, that, as to any such merger or consolidation, each of the following conditions is satisfied: (A) Agent shall have received not less than ten (10) Business Days' prior written notice of the intention of any Borrower or Guarantor to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, and the material agreements and documents relating to such merger or consolidation, (B) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request within such ten (10) Business Day period, (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (CD) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (E) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Borrowers and Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (DF) Agent in the case of a merger or consolidation of Guarantor with and into a Borrower, the Borrower shall promptly receive true, correct be the surviving corporation and complete copies the amount of all material agreements, documents and instruments relating the liabilities (contingent or otherwise) acquired by such Borrower pursuant to such merger or consolidation; provided, further, that, prior consolidation shall not exceed the value of the assets acquired pursuant thereto and the liabilities so acquired by such Borrower shall otherwise be acceptable to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;Agent,
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $500,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree,
(iii) in addition to sales or other dispositions of Equipment permitted under clause (ii) above, the sale or other disposition of Real Property Equipment to Foreign Subsidiaries so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $750,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and
(iv) the issuance and sale by any Borrower or Guarantor of Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; providedprovided , that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantor with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(ivv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant issuance of non-exclusive licenses Capital Stock of Intellectual Property Parent to the holders of the Subordinated Notes and the Warrants to the extent required under the Subordinated Note Agreements as in effect on the ordinary course date hereof, provided, that, in connection with the issuance of businessany such Capital Stock, (A) Agent shall have received not less than one (1) Business Day prior written notice of such issuance specifying the number of shares to be issued and the basis for such issuance pursuant to the Subordinated Note Agreements and (B) on and after giving effect to such issuance, no Default or Event of Default shall exist or have occurred,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition by Parent of Cash Equivalents for fair market value the Equipment of Parent located in San Jose, California as of the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; date hereof listed on Schedule 9.7 hereto, provided, that, as to any such sale each of the following conditions is satisfied: (A) Agent shall have receivedreceived not less than ten (10) Business Days' prior written notice of the proposed sale by Parent of any of such Equipment, which notice shall specify the parties to such sale, the purchase price and manner of payment thereof, the Equipment to be sold, and such other information with respect thereto as Agent may request, (B) all of the Net Proceeds payable to or for the benefit of Parent in respect of such sale shall be in the form of immediately available funds received by Parent on the effective date of the transfer of the title to such Equipment, (C) the total amount of the Net Proceeds payable to Parent in cash or other immediately available funds in consideration of such sale at the time of the transfer of title of such Equipment shall be not less than $3,000,000, (D) all Net Proceeds from such sale shall be paid directly by the purchaser to Agent for application to the Obligations in such order and manner as Agent may determine, (E) such sale shall be on commercially reasonable terms in a bona fide arms' length transaction with a person that is not an Affiliate, (F) all of the Equipment so sold shall be leased back by the purchaser thereof to Parent and the Indebtedness arising pursuant to such lease shall be permitted under Section 9.9(f) hereof, (G) Agent shall have received an agreement in form and substance reasonably satisfactory to Agent (A) evidence that from the purchaser of such Equipment giving Agent has a valid the right to use such Equipment under certain circumstances duly authorized, executed and perfected first priority security interest in and lien upon all such Capital Stock delivered by the purchaser thereof, and (BH) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and,
(xiiviii) the sale or other disposition by Parent of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than Rochester Real Property after the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); date hereof, provided, that, as to any such sale each of the following conditions is satisfied: (A) Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Parent of any of such Real Property, which notice shall specify the parties to such sale, the purchase price and manner of payment thereof, the Real Property to be sold, and such other information with respect thereto as Agent may request, (B) all of the Net Proceeds payable to or for the benefit of Parent in respect of such sale shall be in the form of immediately available funds received by Parent on the effective date of the transfer of the title to such Real Property, (C) the total amount of the Net Proceeds payable to Parent in cash or other immediately available funds in consideration of such sale at the time of the transfer of title of such Real Property shall be not less than $1,500,000, (D) all Net Proceeds from such sale shall be paid directly by the purchaser to Agent for application to the Obligations in such order and manner as Agent may determine and if there are no Loans outstanding, to be held by Agent as cash collateral for the Obligations, (E) such sale shall be on commercially reasonable terms in a bona fide arms' length transaction with a person that is not an Affiliate, (F) all of the Real Property so sold shall be leased back to Parent and the Indebtedness arising pursuant to such lease shall be permitted under Section 9.9(g) hereof, and (G) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(c) wind up, liquidate or dissolve dissolve, except that that:
(i) any Guarantor Foreign Subsidiary may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (iA) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor in no event shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is liabilities, or make or be required to make any payment in connection with such winding up, liquidating or dissolving, unless such Indebtedness dissolution or take any other action which is otherwise expressly permitted prohibited hereunder, (ivB) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such winding Foreign Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vC) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred,
(dii) enter into any sale-leaseback transactionGuarantor may wind up, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); liquidate or dissolve, provided, that, each (A) in no event shall any Borrower assume any Indebtedness, obligations or liabilities as a result of the following conditions is satisfied: (i) Agent shall receive prompt written notice such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities, or make or be required to make any payment in connection with such sale-leasebackwinding up, liquidating or dissolution or take any other action which is otherwise prohibited hereunder, (iiB) promptly upon Agent’s request, Agent shall have received truenot less than ten (10) Business Days' prior written notice of the intention of Guarantor to wind up, correct liquidate or dissolve, and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iiiC) as of the date of the consummation of such sale-leaseback winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000occurred; andor
(ed) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not not, directly or indirectly:: Merger, Dissolution, Etc.
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americait, provided, that, in each case unless each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (Ai) Agent Lender shall receive prompt have received not less than ten (10) days prior written notice of any the intention of Borrower to so merge or consolidate and such merger or consolidationother information with respect thereto as Lender may request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (Ciii) in Lender shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is consolidation as filed with each appropriate Secretary of State, (iv) the surviving corporation or limited liability company, such corporation or limited liability company entity shall have expressly confirmed, ratified and assumed immediately upon the Obligations effectiveness of such Borrower merger or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a partyconsolidation expressly confirm in writing an agreement, in form and substance reasonably satisfactory to AgentLender, its continuing liability in respect of the Obligations and in the case of a merger between any Borrower or Guarantor Financing Agreements and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, (v) the surviving entity shall, immediately before and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating immediately after giving effect to such merger or consolidation; provided, furtherhave a net worth, thatincluding without limitation, any indebtedness incurred or anticipated to be incurred in connection with or in respect of such merger or consolidation, equal to or greater than the net worth such entity had immediately prior to the Petro Existing Security Agreement Termination Datesuch merger or consolidation, no Petro Company and (vi) Borrower shall be merged not become obligated with respect to any indebtedness, nor shall any of its property become subject to any security interest, lien, claim, charge or consolidate into any incumbrance pursuant to such merger or consolidation, unless Borrower could incur such indebtedness or Guarantor other than another Petro Companycreate such security interest, lien, claim, charge or encumbrance as permitted under this Agreement;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock stock or Indebtedness indebtedness to any other Person or any of its assets to any other Person, except forexcept:
(i) sales of Inventory (which term includes Trial Inventory) in the ordinary course of business,
(ii) the sale or other grant by Borrower to customers of Borrower in the ordinary course of the business of Borrower consistent with its current practices as of the date hereof of a non-exclusive license to use associated software in connection with the Inventory sold by Borrower to such customers of Borrower;
(iii) the disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of Borrower,
(iv) sales by Borrower from time to time in the ordinary course of its business consistent with the current practices of Borrower as of the date hereof of all of Borrower's right, title and interest in and to any Borrower or Guarantor) Contract Receivable and the sale Installment Sales Contract related thereto, which Contract Receivable is not an Eligible Contract Receivable, to persons who purchase chattel paper in the ordinary course of Real Property its or the Capital Stock of any Propcotheir business; provided, that, as to each and all of such sales, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default Contract Receivable arising under the Installment Sales Contract to be sold shall have occurred and be continuingnot constitute an Eligible Contract Receivable, (B) such sale or disposition shall be on commercially reasonable terms to a person who is not an Affiliate of Alliance, Parent, Borrower or their respective Subsidiaries, (C) such sale shall be in a bona fide arms arm's length transaction, (C) as of the date of such sale or disposition transaction on commercially reasonable prices and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000terms, (D) such sale or disposition Lender shall have received not be in connection with any sale-leaseback transaction less than ten (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x10) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt Business Days prior written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property which notice shall set forth in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably reasonable detail satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreementsLender, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.the
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that it, except
(i) any Borrower or Guarantor Domestic Subsidiary may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, Borrower; provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of Borrower to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the Domestic Subsidiary that is merging or consolidating with Borrower, the locations of the assets of the Domestic Subsidiary that is merging or consolidating with Borrower, and the material agreements and documents relating to such merger or consolidation, (B) Borrower shall be the surviving entity of such merger or consolidation, (C) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request within a reasonable time of such requests, (D) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (CE) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any copy as filed promptly after such filing), (F) Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is as the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, Agent and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (DG) each Guarantor shall ratify and confirm that its guarantees of the Obligations shall apply to the Obligations as assumed by such surviving entity;
(ii) any Foreign Subsidiary may merge or consolidate with and into any other Foreign Subsidiary or any other Person; provided, that, (A) Agent shall promptly receive truehave received not less than ten (10) Business Days’ prior written notice of the intention of such Foreign Subsidiary to so merge or consolidate, correct which notice shall set forth in reasonable detail satisfactory to Agent, the Foreign Subsidiary that is merging or consolidating, the person with whom such Foreign Subsidiary is merging or consolidating and complete copies of all the material agreements, agreements and documents and instruments relating to such merger or consolidation, (B) a Foreign Subsidiary shall be the surviving entity of such merger or consolidation; provided, furtherexcept, that, prior a Foreign Subsidiary may not be the surviving entity of such merger or consolidation so long as the terms and conditions of Section 9.7(b)(vi) below are satisfied with respect to such merger or consolidation, (C) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request within a reasonable time of such requests, (D) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing, and (E) in no event shall Borrower make, or be required to make, any payment or incur any obligation or liability in connection with such merger or consolidation or take any other action which is otherwise prohibited hereunder (except to the Petro Existing Security Agreement Termination Dateextent that it may otherwise be permitted to do so in this Agreement);
(iii) pursuant to and in accordance with any transaction permitted under Section 9.10(g), no Petro Company shall be merged with (i) or consolidate into any Borrower or Guarantor other than another Petro Company;(j); or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except forexcept:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale business and sales or other disposition dispositions of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or GuarantorBorrower,
(ii) and the sale or other disposition of Equipment so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value the sum of which, together with the Real Property referred to in Section 9.7(b)(viii) below, is not in excess of $50,00,000 during the term hereof or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofmay otherwise agree,
(iii) the issuance and sale by Parent Borrower of Capital Stock of Parent Borrower (other than Disqualified Capital Stockwhether common or preferred) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower from such sale, (B) if a Cash Dominion Period existsBorrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or the right of Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower with Agent and Lenders or are more restrictive or burdensome to Borrower than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application applied to the Obligations in accordance with Section 6.4(asuch order and manner as Agent may determine (without permanent reduction in the Maximum Credit) hereofand (E) as of the date of such issuance and sale and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, ; provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease or other disposition sale by any Foreign Subsidiary of its assets in the ordinary course of any Borrower or Guarantor to another Borrower or Guarantorits business consistent with its prior practices,
(vi) the grant sale by any Foreign Subsidiary of non-exclusive licenses all or any substantial portion of Intellectual Property its assets or the sale by any Foreign Subsidiary of any of the Capital Stock of another Foreign Subsidiary owned by such Foreign Subsidiary or the sale by Borrower of any of the Capital Stock of any Foreign Subsidiary or the merger or consolidation of any Foreign Subsidiary with any other Person (other than another Foreign Subsidiary); provided, that, as to any such sale, merger or consolidation, each of the following conditions is satisfied:
(A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such sale, merger or consolidation, which notice shall set forth in reasonable detail satisfactory to Agent, the ordinary course parties to such sale or other disposition (or merger or consolidation as the case may be), the assets to be sold or otherwise disposed of, the purchase price (or merger consideration) and the manner of businesspayment thereof and such other information with respect thereto as Agent may reasonably request,
(B) as of the date of such sale or other disposition (or merger or consolidation as the case may be) and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing,
(C) such sale (or merger or consolidation as the case may be) shall be pursuant to a bona fide arm’s length transaction with a person that is not an Affiliate, and
(vii) leases as to any such merger or subleases consolidation, all of Real Property permitted under the conditions of Section 9.8(m9.7(a)(ii) or 9.12 hereofshall be satisfied (other than the condition that a Foreign Subsidiary be the surviving entity of such merger of consolidation),
(viii) the sale by Borrower of any of its Real Property having a fair market value the sum of which, together with the Equipment referred to in Section 9.7(b)(ii) above, is not in excess of $50,000,000 during the terms hereof or other disposition of Cash Equivalents as Agent may otherwise agree: provided, that, (A) such sale shall be made in good faith for fair market value in a bona fide arms’ length transaction (including any such sale to an Affiliate of Borrower so long as Section 9.12 is complied with), (B) as of the ordinary course date of businesssuch sale and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing,
(ix) the issuance and sale by any Subsidiary of Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; providedany Subsidiary of Borrower in a transaction not otherwise prohibited by the Agreement, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,or
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer assignment, lease, transfer, abandonment or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms of any Intellectual Property that is not used or useful in a bona fide arms length transaction, (C) as the operation of the date of such sale Borrower’s or disposition and after giving effect theretoany Subsidiary’s business, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,or
(c) wind up, liquidate or dissolve except that dissolve; except, that, any Guarantor Subsidiary of Borrower may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which Borrower or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary shall be duly and validly transferred and assigned to a the shareholders of such Subsidiary and in the case of any transfer to Borrower or another Guarantorany Domestic Subsidiary, free and clear of any liens, restrictions or encumbrances other than the security interests and liens of Agent with respect thereto, if any, and any other liens, restrictions or encumbrances permitted hereunder (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Subsidiary, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor such Subsidiary has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall not assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such winding Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except that (i) any wholly-owned Subsidiary of Parent (other than any Borrower or Guarantor) may merge with and into or consolidate with any other wholly-owned Subsidiary of Parent (other than any Borrower or Guarantor), (ii) any Borrower may merge with and into or consolidate with any other Borrower, (iii) any Guarantor may merge with and into or consolidate with any other Guarantor, (iv) with the prior consent of Agent, any wholly-owned Subsidiary of Parent (other than any Borrower or Guarantor) may merge with and into or consolidate with Parent, any Borrower or Guarantor, and (v) Parent and any of its Subsidiaries may merge with and into or consolidate with any other Person in order to effectuate any Permitted Acquisition, provided that Parent or the applicable Subsidiary shall be the surviving corporation and (vi) any Subsidiary of Parent other than a Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including Person in order to effectuate any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaAsset Sale permitted hereunder and, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail reasonably satisfactory to Agent, the Persons that are merging or consolidating, which Person will be the surviving entity, the locations of the material assets of the Persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (B) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingoccurred, (C) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive have received true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, furtherincluding, thatbut not limited to, prior the certificate or certificates of merger to be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), (E) except in the Petro Existing Security Agreement Termination Datecase of mergers permitted pursuant to Section 9.7(a)(vi) in order to effectuate Asset Sales permitted hereunder, no Petro Company the surviving corporation (except for Subsidiaries that are not organized in the United States) shall be merged with or consolidate into any Borrower or Guarantor expressly confirm, ratify and assume the Obligations and the Financing Agreements to which it is a party in writing, in form and substance reasonably satisfactory to Agent, and Borrowers and Guarantors shall execute and deliver such other than another Petro Companyagreements, documents and instruments as Agent may reasonably request in connection therewith;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets (including Indebtedness held by such Person and Capital Stock of such Person) to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,;
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment and Real Property no longer used or useful in the business of any Borrower or Guarantor) Guarantor so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $5,000,000 for all such Equipment and the sale of Real Property or disposed of during the Capital Stock term of any Propco; this Agreement, provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) continuing at the time of any such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or other disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, thereto and (DB) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application subject to the Obligations in accordance with terms of Section 6.4(a) hereof,6.4;
(iii) transfers resulting from any casualty or condemnation of property or assets;
(iv) intercompany sales or transfers of assets among Borrowers and Guarantors in the ordinary course of Borrowers' and Guarantors' business;
(v) the licensing or sublicensing of Intellectual Property and General Intangibles and any license, lease or sublease of other property in the ordinary course of Borrowers' and Guarantors' business;
(vi) leases or subleases of Real Property no longer used or useful in the Borrowers' business provided no Default or Event of Default shall have occurred and be continuing on the date thereof and after giving effect thereto;
(vii) consignment arrangements or similar arrangements for the sale of assets in the ordinary course of business, provided that Borrowers shall have satisfied all conditions with respect to such consignment arrangements that are set forth in clause (d) of the definition of Eligible Accounts;
(viii) subject to Agent's prior written consent, sales or discounts of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(ix) sales or other dispositions of other property or assets not otherwise permitted hereunder for at least 80% in cash in an aggregate amount not less than the fair market value of such property or assets; provided that (A) in the case of this clause (ix), the Net Cash Proceeds of such sales or other dispositions do not exceed $5,000,000 in the aggregate for the term of this Agreement, (B) no Default or Event of Default shall have occurred and be continuing on the date thereof and after giving effect thereto, and (C) the Net Cash Proceeds of such sales or dispositions shall be subject to the terms of Section 6.4;
(x) sales by Borrowers' and Guarantors' foreign Subsidiaries of accounts receivable in connection with any Permitted Foreign Subsidiary Credit Facility;
(xi) the issuance, on or about the date hereof, to holders of the New Notes of substantially all of Parent's common Stock, as contemplated by the Chapter 11 Plan;
(xii) in addition to the issuance of Stock permitted pursuant to clause (xi) immediately above, the issuance and sale by Parent any Borrower or Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) such Borrower or Guarantor after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold (if known) and the total amount and the Net Cash Proceeds anticipated to be realized from such sale, (B) if a Cash Dominion Period existssuch Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, all of except as otherwise permitted hereunder, and (C) the net cash proceeds of the sale and issuance terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive the Loan or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) Borrowers' and Guarantors' use of such Net Cash Proceeds shall promptly be paid to Agent for application subject to the Obligations in accordance with terms of Section 6.4(a) hereof,6.4(e);
(ivxiii) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, including, without limitation, Parent's issuance of stock options, and the issuance of shares of its common Capital Stock in connection with the exercise of such stock options, to Parent's and Borrowers' management pursuant to Parent's 2004 Stock Plan, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and;
(vxiv) the saleSpecified Sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, provided that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate at the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date time of such sale, transfer or disposition sale and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) the Net Cash Proceeds related thereto shall be subject to Section 6.4 and (C) the Consolidated Leverage Ratio on a pro forma basis shall not exceed 3.5:1; and
(xv) sale and transfer of Equipment by Borrowers to Borrowers' or Guarantor's foreign Subsidiaries having an aggregate fair market value not exceeding $10,000,000 in the aggregate for all such transfers during the term of this Agreement and evidenced by promissory notes executed by the transferee of such Equipment, in form and substance reasonably satisfactory to Agent, provided the then outstanding aggregate amounts of investments and loans by Borrowers to or in Subsidiaries permitted by Section 9.10(h), plus those loans permitted by and made pursuant to this Section 9.7(b)(xv) shall not exceed $15,000,000 and, provided further that, at the time of any such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition transfer and after giving effect thereto, if the aggregate net book cumulative fair market value of all of the assets so Equipment sold or disposed of transferred in any fiscal year of Parent shall not exceed $20,000,000, (D) as of reliance on this subsection after the date of such sale this Agreement exceeds $2,000,000, (A) no Default or disposition Event of Default shall have occurred and after giving effect theretobe continuing, (B) Borrowers shall have Excess Availability plus Unrestricted Cash shall not be less than of at least $20,000,000, 20,000,000 and (EC ) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction promissory notes shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any pledged and delivered to Agent as part of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,Collateral.
(c) wind up, liquidate or dissolve except that any Guarantor Subsidiary of Parent (other than a Borrower) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (iii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary shall be duly and validly transferred and assigned to a Borrower or another a Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent and encumbrances permitted pursuant to Section 9.8 (and Agent shall have received such evidence thereof as Agent may reasonably require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor to a Borrower or a Guarantor, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than five (5) Business Days' prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
occurred. In connection with any sale or disposition of Collateral permitted by this Section 9.7 (d) enter into any sale-leaseback transactionwhich, except for the sale-leaseback avoidance of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provideddoubt, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies not include a disposition of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, substantially all of the net cash proceeds Collateral) the Agent will, at the Borrowers' expense, execute and deliver such releases of Collateral as may be reasonably necessary to evidence the release of all Liens on such sale-leaseback shall promptly be paid to Agent for application to Collateral under the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum CreditFinancing Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (International Wire Group Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) Borrower), and (ii) any Borrower or Guarantor may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Borrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $7,500,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree,
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) as of the date Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or disposition Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and after giving effect thereto, no Default sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Event of Default shall have occurred and be continuingGuarantor from such sale, (B) such sale Borrower or disposition Guarantor shall not be on commercially reasonable terms required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in a bona fide arms length transactionrespect thereof, except as otherwise permitted in Section 9.11 hereof and except after the end of the then current term of this Agreement and the payment in full in cash or other immediately available funds of all of the Obligations, (C) as the terms of such Capital Stock, and the terms and conditions of the date of such purchase and sale or disposition and after giving effect theretothereof, Excess Availability plus Unrestricted Cash shall not be less include any terms that include any limitation on the right of any Borrower to request or receive Revolving Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than $20,000,000the terms of any Capital Stock in effect on the date hereof, (D) such except with respect to any sale and issuance of Capital Stock of Parent or disposition shall not be Operating and as to the other Borrowers and Guarantors and their respective Subsidiaries, except as Agent may otherwise agree in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existswriting, all of the net cash proceeds of the sale and issuance of such sale or disposition Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
hereof and (iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital StockE) after the date hereof; providedgiving effect thereto, that, (A) if a Cash Dominion Period exists, Agent no Default or Event of Default shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofexist or have occurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) sales or other dispositions by any Borrower of assets in connection with the closing or sale of a retail store location of such Borrower in the ordinary course of such Borrower’s business which consist of leasehold interests in the premises of such store, the Equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store; provided, that, as to each and all such sales and closings, (A) on the date of, and after giving effect to, any such closing or sale, transferthe aggregate number of retail store locations operated by Retail and Factory closed or sold by Borrowers in any fiscal year minus the number of retail stores operated by Retail and Factory opened by Borrowers in such fiscal year, leaseshall not exceed the amount equal to twenty (20%) percent of the number of retail store locations of Borrowers operated by Retail and Factory, sublease as of the end of the immediately preceding fiscal year, (B) Agent shall have received not less than ten (10) Business Days prior written notice of such sale or closing, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) after giving effect thereto, no Event of Default shall exist or have occurred and be continuing, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction, and (E) any and all proceeds payable or delivered to such Borrower in respect of such sale or other disposition shall be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the terms of this Agreement (except to the extent such proceeds reflect payment in respect of Indebtedness secured by a properly perfected first priority security interest in the assets of any Borrower or Guarantor sold, in which case, such proceeds shall be applied to another Borrower or Guarantorsuch indebtedness secured thereby),
(vi) the grant by any Borrower or Guarantor after the date hereof of a non-exclusive licenses license or an exclusive license to any person for the use of any Intellectual Property in the ordinary course consisting of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale trademarks owned by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another such Borrower or Guarantor; provided, that, as to any such license, each of the following conditions is satisfied, (A) such license is only for the use of trademarks in the manufacture, distribution or sale of products outside the United States of America and Canada or, if such license is for the use of such trademarks in the manufacture, distribution or sale of products within the United States of America or Canada, it is only for categories or types of Inventory other than men’s or women’s wearing apparel of the type or category being sold by any Borrower or Guarantor as of the date of this Agreement or that Borrower and Guarantors do not manufacture, distribute or sell, (B) such licenses shall be on commercially reasonable prices and terms in a bona fide arms’ length transactions, (C) in the case of a non-exclusive license, the rights of the licensee shall be subject to the rights of Agent, and in the case of any license, shall not adversely affect, limit or restrict the rights of Agent to use any Intellectual Property of a Borrower or Guarantor to sell or otherwise dispose of any Inventory or other Collateral, (D) Agent shall have received, in form true, correct and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien complete copies of the executed license agreement, promptly upon all such Capital Stock the execution thereof and (BE) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of the grant of any such salelicense, transfer or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and,
(xiivii) the sale sales, transfers and dispositions to Operating or other disposition a Subsidiary of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above Operating (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borroweran Inactive Subsidiary); provided, that, (A) as of the date of any such sale sales, transfers or disposition and after giving effect thereto, no Default dispositions involving a Subsidiary that is not a Borrower or Event of Default shall have occurred and be continuing, (B) such sale or disposition Guarantor shall be on commercially reasonable terms made in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance compliance with Section 6.4(a) 9.12 hereof,
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower its shareholders, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor to such shareholders, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained foregoing set forth in subsections (a) through (c) of this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum CreditSection 9.7.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any Subsidiary of Borrower to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except that a majority-owned Subsidiary of
(i) any Borrower or Guarantor may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of Borrower to so merge or consolidate, and such merger or consolidationinformation with respect thereto as Agent may reasonably request, (Bii) as of the effective date of the such merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Ciii) in Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the case certificate or certificates of a merger between any as filed with each appropriate Secretary of State, (iv) Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is wholly-owned domestic Subsidiary shall be the surviving corporation or limited entity and shall immediately upon the effectiveness of the merger expressly confirm in writing pursuant to an agreement, in form and substance satisfactory to Agent, its continuing liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed in respect of the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a party, in form party and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, (v) any Guarantor shall ratify and confirm that its guarantees of the Obligations shall apply to the Obligations as assumed by such surviving entity and ratify and confirm any other agreements by such Obligors in favor of Agent, and (Dvi) Agent the surviving entity shall promptly receive truenot become obligated with respect to any Indebtedness, correct and complete copies nor any of all material agreementsits property become subject to any lien, documents and instruments relating to unless Borrower could incur such merger Indebtedness or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Companycreate such lien hereunder;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of Borrower) or other assets (other than any Collateral) no longer used in the conduct of its business so long as such sales or other dispositions do not involve Equipment or such other assets (other than any Collateral) having an aggregate fair market value in excess of $17,500,000 for all such Equipment or such other assets (other than Collateral) disposed of in any fiscal year of Borrower or Guarantoras Agent may otherwise agree,
(iii) sales or other dispositions by Borrower of assets or properties consisting of the Mortgage Note Collateral; provided, that, as to each and all such sales or dispositions, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or disposition, and such other information with respect thereto as Agent may reasonably request, and (B) such sale or disposition is consummated in accordance with the terms and conditions of the Mortgage Note Agreements and the Mortgage Note Intercreditor Agreement, or
(iv) the issuance or sale of Real Property or the Capital Stock by Borrower or any Subsidiary of any PropcoBorrower after the date hereof or as sales or issuances of Capital Stock issued by Subsidiaries formed or acquired to the extent permitted hereby; provided, that, (A) as in the case of the date of any such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified a Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period existsStock of Borrower, Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such issuance and sale by Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and (B) if a Cash Dominion Period exists, all sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower from such sale, (B) Borrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof prior to the end of the sale and issuance term of this Agreement, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or which are more restrictive or burdensome to Borrower than the terms of any Capital Stock of Borrower in effect on the date hereof, and (D) in the case of any such sale or issuance of Capital Stock of a Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock of Borrower, after giving effect to such issuance or sale, no Event of Default shall promptly exist or have occurred and be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,continuing;
(ivA) the issuance of Capital Stock of any Borrower consisting of common stock (and options therefor) in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof, (B) the issuance of the PBGC Warrant and the Series C Participating Preferred Stock in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof, (C) the issuance of Capital Stock of Borrower consisting of common stock pursuant to the exercise of options therefor that have been issued pursuant to the Plan of Reorganization as in effect on the date hereof or Guarantor pursuant to the exercise of its PBGC Warrant as in effect on the date hereof, and (D) the issuance of Capital Stock to qualify directors to the extent required by applicable law in the ordinary course;
(vi) the issuance of Capital Stock of Borrower consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases the deposit of Real Property permitted under Section 9.8(m) or 9.12 $450,000 on the date hereof in an escrow fund pursuant to which the Borrower becomes a contributing member of the GMP Multiemployer Plan in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof,
(viii) the sale licensing by Borrower or other disposition a Subsidiary of Cash Equivalents for fair market value Borrower of Intellectual Property owned by it to another Person; provided, that, as to any such license: (A) the transaction with respect to such license is an arm's length transaction in the ordinary course of business,business of Borrower or such Subsidiary, (B) Borrower or such Subsidiary receives at least fair market value with respect to the value of such license as determined by Borrower in good faith, and (C) any rights of such Borrower or such Subsidiary shall be subject to the rights of Agent in such Intellectual Property, including, without limitation, the rights of Agent to use such Intellectual Property in connection with the exercise of Agent's rights and remedies with respect to the Collateral;
(ix) investments permitted by Section 9.10 hereof;
(x) sale and leaseback transactions with respect to Equipment, Real Property or other assets not constituting Collateral so long as the issuance following conditions shall have been satisfied, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or leaseback and sale by any Borrower such other information with respect thereto as Agent may reasonably request, (other than ParentB) after giving effect to such transaction no Default or Guarantor Event of its Capital Stock Default exists or has occurred and is continuing, (other than Disqualified Capital StockC) to another such transaction is an arm's length transaction and Borrower or Guarantor; providedsuch Subsidiary, thatas the case may be, receives at least fair market value, as determined in good faith by Borrower, in connection with such transaction and (D) Agent shall have received, in form and substance reasonably satisfactory to Agent, a Collateral Access Agreement with respect to such Equipment, Real Property or other assets;
(xi) discounts, settlement or compromise of Indebtedness evidenced by the Pabst Notes to the extent permitted by Section 9.19 hereof;
(c) form or acquire any Subsidiaries, except, that, Borrower may form or acquire Subsidiaries (to the extent permitted by Sections 9.7(a) and 9.10 hereof) after the date hereof; provided, that, (i) as of the date of such formation or acquisition, and after giving effect thereto or otherwise, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such Subsidiary shall be incorporated in a State of the United States, (iii) upon such formation or acquisition, Borrower shall notify Agent of such formation or acquisition and Borrower shall cause any such Subsidiary to execute and deliver to Agent, in form and substance satisfactory to Agent: (A) evidence that Agent has an absolute and unconditional guarantee of payment of all of the Obligations, (B) a valid security agreement granting to Agent, for itself and perfected the benefit of Lenders a first priority security interest in and lien upon all of the accounts receivable and inventory (and related property comparable to that included as Collateral) of such Capital Stock Subsidiary, (C) related UCC financing statements, and (BD) such other agreements, documents and instruments as Agent may reasonably request require in connection therewith as to effectuate the purpose validity and intent enforceability thereof, (iv) upon such formation or acquisition, to the extent not prohibited by the Mortgage Note Indenture, Borrower shall, and shall cause each Subsidiary of clause Borrower that owns any Capital Stock in such Subsidiary being formed or acquired to, (A) above,
execute and deliver to Agent, a pledge and security agreement, in form and substance satisfactory to Agent, granting to Agent a first pledge of and lien on all of the issued and outstanding shares of Capital Stock of such Subsidiary so formed or acquired that are owned by Borrower or the Subsidiary forming or acquiring such Subsidiary, (xB) deliver the original stock certificates evidencing such shares of Capital Stock (or such other evidence as may be issued in the case of a limited liability company), together with stock powers with respect thereto duly executed in blank (or the equivalent thereof in the case of a limited liability company in which such interests are certificated, or otherwise take such actions as Agent shall reasonably require with respect to Agent's security interests therein), and (C) deliver related UCC financing statements, and (v) the sale amount of Real Estate and Equipment the investment by Borrower in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of such Subsidiary and any Propco and other amounts paid by Borrower to or in connection with the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer formation or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date acquisition of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent Subsidiary shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of amount permitted under Section 9.7(b)(x) 9.10 hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(cd) wind up, liquidate or dissolve except dissolve, except, that any Guarantor Subsidiary of Borrower (other than a Guarantor) may wind up, liquidate and dissolve, provided, thatdissolve so long as, each of the following conditions is satisfied, (i) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (ii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary shall be duly and validly transferred and assigned to a Borrower its shareholders or another Guarantorits creditors, (iiiii) upon the request of Agent, Borrower shall deliver to Agent shall have received all documents and agreements that any Borrower or Guarantor any Subsidiary has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiiv) no Borrower or Guarantor such Subsidiary, as the case may be, shall assume not acquire any Indebtedness, obligations or material liabilities not otherwise permitted hereby as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivv) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvi) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco)occurred; provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; andor
(e) agree to do any of the foregoing. Notwithstanding anything foregoing provided that Borrower and its Subsidiaries may enter into agreements to effectuate any transaction otherwise prohibited by this Section 9.7 so long as (i) concurrently with the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date execution and delivery of any such saleagreement, lease, transfer, assignment, license, abandonment Borrower shall provide Agent notice thereof and (ii) the consummation of any such agreement is conditioned upon obtaining either (A) the consent of Agent or disposition, no Default the Required Lenders or Event (B) the termination of Default shall have occurred this Agreement and be continuing the other Financing Agreements and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent repayment in full of all outstanding Obligations in accordance with the Maximum Creditterms and conditions contained herein.
Appears in 1 contract
Samples: Loan and Security Agreement (Anchor Glass Container Corp /New)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor Grantor shall not not, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except that (i) any Borrower or Guarantor Grantor may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with order to acquire the assets of such Person pursuant to a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaAcquisition, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: :
(Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of Grantor to so merge, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger, (ii) Agent shall have received such other information with respect to such merger or consolidationas Agent may request, (Biii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (C) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (Div) Agent shall promptly receive have received, true, correct and complete copies of all material agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger or consolidation; providedto be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company (v) Grantor shall be merged the surviving corporation, (vi) the Person with whom Grantor is merging shall be organized under the laws of a jurisdiction within the United States of America, (vii) Grantor, as the surviving corporation shall expressly confirm, ratify and assume the Obligations and the Financing Agreements to which it is a party in writing, in form and substance satisfactory to Agent, (viii) the consideration paid for or consolidate into in connection with the merger with such Person shall consist of shares of Grantor or cash of Grantor that is not in a Restricted Account, and (ix) Agent shall have received all agreements, documents and instruments required under Section 2.2 and otherwise hereunder, except that Agent shall not be required to have received any Borrower or Guarantor other than another Petro Company;shares of the capital stock of the Acquired Business purchased by Grantor pursuant to such Permitted Acquisition as Collateral; or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock capital stock or Indebtedness indebtedness to any other Person or any of its assets to any other Person, Person (except for
for (i) sales of Inventory in the ordinary course of business,
, (ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; providedGrantor, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent Grantor of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereofany capital stock; provided, that, (A) if a Cash Dominion Period existsGrantor shall not be required to pay any cash dividends or repurchase or redeem such capital stock or make any other payments in respect thereof, Agent shall receive prompt written notice except as otherwise permitted in Section 5.11 hereof and the terms of such issuance capital stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to deal with Agent or the other Secured Parties or in any way otherwise relate to or affect the arrangements of Borrowers and (B) if a Cash Dominion Period exists, all of Guarantor with Agent and the net cash proceeds of the sale other Secured Parties and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant indebtedness by Grantor to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not extent otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereofhereunder), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,or
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (foregoing other than a Petro Company) shall, prior to in accordance with the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Creditterms above.
Appears in 1 contract
Samples: General Security Agreement (HyperSpace Communications, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each No Borrower -------------------------------------------------------- shall and Guarantor Parent shall cause each Obligor and each other Subsidiary of Parent not directly or indirectlyto:
(a) merge into or with or consolidate with any other Person (other than a Borrower or Obligor, including, without limitation, a Retail Store Subsidiary except that no Financing Subsidiary or Foreign Subsidiary may merge into or consolidate with any Borrower or Obligor) or permit any other Person (other than a Borrower or Obligor) to merge into or with or consolidate with it it, except that (i) for the merger or consolidation of any other Person (except a Financing Subsidiary) into a Borrower or Guarantor Obligor, with such Borrower or Obligor being the surviving entity of such merger or consolidation as to which Agent has given its prior written consent thereto, which consent will not be unreasonably withheld and (ii) (A) Inactive Subsidiaries may merge into or with or consolidate with each other, (B) Financing Subsidiaries may merge into or with or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor Financing Subsidiaries except no other Financing Subsidiary may merge or consolidate with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaFSC, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (C) in the case of a merger between any Borrower Foreign Subsidiaries may merge into or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except forwith each other; or
(i) (A) sales of Inventory by Borrowers and Obligors in the ordinary course of business,, (B) dispositions of assets by Financing Subsidiaries contemplated by Qualified Securitization Transactions substantially consistent with current practices in effect immediately prior to the date hereof, and (C) dispositions of assets by Foreign Subsidiaries in the ordinary course of business consistent with current practices in effect immediately prior to the date hereof;
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment in the ordinary course of business or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, so long as (A) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default Default, or act, condition or event which with notice or passage of time would constitute an Event of Default, shall exist or have occurred occurred, and (B) to the extent such sales or other dispositions result in proceeds in excess of $1,000,000 for all such Equipment disposed of in any fiscal year of Borrowers such proceeds in excess of $1,000,000 shall be continuingpaid to Agent and Agent shall establish a Reserve equal to such amount;
(iii) the sale, lease or other disposition of Equipment (not subject to Sections 9.7(b)(ii) or (b)(iv) hereof) or Real Property to a Person who is not a Borrower or Obligor, in the ordinary course of business so long as (A) as of the date of such sale or other disposition and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time would constitute an Event of Default, shall exist or have occurred, (B) such sales do not involve Equipment or Real Property having an aggregate fair market value in excess of $1,000,000 for all such Equipment and Real Property disposed of in any fiscal year of Borrowers, and (C) to the extent a Cash Dominion Event (other than an Event of Default) exists, any net proceeds are paid to Agent, to be applied to the outstanding principal amount of Revolving Loans, which amounts may be reborrowed;
(iv) sales or other dispositions by Borrowers or Retail Store Subsidiaries of assets in connection with the closing or sale of a Retail Store location of any Borrower or Retail Store Subsidiary in the ordinary course of such Borrower's or Retail Store Subsidiary's business which consist of leasehold interests in the premises of such store, the Equipment, Inventory and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store; provided, that, as to each and all -------- ---- such sales, (A) on the date of, and after giving effect to, any such sale, in any calendar year, Borrowers and Retail Store Subsidiaries shall not have closed or sold Retail Store locations accounting for more than five (5%) percent of all sales of Borrowers and Retail Store Subsidiaries in the immediately preceding twelve (12) month period, (B) to the extent not already identified in the most recent report provided to Agent in accordance with Section 7.1(a)(iii) hereof, prior to any such sale or disposition disposition, Agent shall have received not less than ten (10) Business Days prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be on commercially reasonable terms in a bona fide arms length transactionsold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default Default, or act, condition or event which with notice or passage of time would constitute an Event of Default, shall exist or have occurred occurred, and be continuing(D) to the extent a Cash Dominion Event (other than an Event of Default) exists, and
(xii) the any and all net proceeds payable or delivered to such Borrower or Retail Store Subsidiary in respect of such sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transactionpaid or delivered, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets caused to be sold paid or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existsdelivered, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent Agent, for application to the Obligations in accordance with outstanding principal amount of the Revolving Loans, which may be reborrowed;
(v) dispositions by any Borrower or any Obligor of any property to any other Borrower or any other Obligor; and
(vi) dispositions of the Cash Equivalents and other investments permitted under Section 6.4(a) 9.10 hereof,; or
(c) wind up, liquidate or dissolve except that dissolve, except, that, any Guarantor Retail Store ------- ---- Subsidiary or any Financing Subsidiary may wind up, liquidate and or dissolve, provided, that, each of the following conditions is satisfied, satisfied as determined by -------- ---- Agent:
(i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor Obligor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that Subsidiary which is winding up, liquidating or dissolving, unless such Indebtedness (ii all assets of the Subsidiary which is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation liquidating or dissolutiondissolving shall be promptly distributed to its shareholders or partners, as the case may be, and (v) as of ii on the date of such winding up, liquidation or dissolution and after giving effect theretoto any such winding-up, dissolution or liquidation, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor each Aftermarket Entity shall not, and shall not permit any Subsidiary to, directly or indirectly:, or agree to do any of the following,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor may can merge with or and into or consolidate with any other Borrower and Guarantor can merge with and into or consolidate with any other Guarantor (including organized in the same jurisdiction as the other Guarantor) or any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms wholly-owned Subsidiary of Section 9.21(d) hereof) and Parent (ii) other than any Borrower or Guarantor any Guarantor) may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States other wholly-owned Subsidiary of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Parent (other than any Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaGuarantor), provided, that, in each case case, each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyentity shall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Aftermarket Entities shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) (x) sales of Inventory in the ordinary course of businessbusiness and (y) sales of all of Borrowers' Inventory and Equipment at a location provided that (1) the aggregate Value of such Inventory and Equipment at such location does not exceed $150,000, (2) all of the proceeds from the sale of such Inventory and Equipment are paid to Agent for application to the Obligations in accordance with the provisions hereof and (3) the aggregate amount of Equipment and Inventory sold pursuant to this Section 9.7(b)(i)(y) shall not exceed $500,000 during any calendar year,
(ii) the sale or other disposition of (A) Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantorany Aftermarket Entity) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $150,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree and (B) whether or not part of a sale/leaseback transaction, Real Property subject to the Mortgages in effect on the date hereof (or delivered pursuant to the Post Closing Letter) provided that, notwithstanding the provisions set forth in Section 6.4(a) hereof, (1) in the event that the sale or other disposition of such Real Property occurs prior to the restructure of the Term Loans in accordance with Section 2.3(c) hereof, the proceeds from such sale, in the amount of fifty percent (50%) of the fair market value of such Real Property being sold (as set forth in an appraisal of such Real Property, in form and substance reasonably satisfactory to Agent, conducted by an appraiser satisfactory to Agent within three (3) months after the date hereof or, in the case of Parent's Real Property located in Laredo, Texas, as set forth in the appraisal dated June 29, 2006 delivered to Agent prior to the date hereof), is paid to Agent for application to the Term B Loan until the Term B Loan is paid in full (to be applied first to the accrued and outstanding interest with respect to the portion of the Term B Loan being prepaid and then, in inverse order of maturity, to the outstanding principal of the Term B Loan) and then to the remaining outstanding Revolving Loans (to be applied first to the accrued and outstanding interest with respect to the portion of the Revolving Loan being paid and then to the outstanding principal of such Revolving Loan) (this subsection (1) shall not be construed to mean that the Term B Loan is only secured by Borrowers' Real Property, as the Term B Loan is secured by all of the Collateral), (2) in the event that the sale or other disposition of such Real Property occurs after the restructure of the Term Loans in accordance with Section 2.3(c) hereof, the proceeds from such sale, in the amount of the greater of (x) fifty percent (50%) of the fair market value of such Real Property being sold (as set forth in an appraisal of such Real Property, in form and substance reasonably satisfactory to Agent, conducted by an appraiser satisfactory to Agent within three (3) months after the date hereof or, in the case of Parent's Real Property located in Laredo, Texas, as set forth in the appraisal dated June 29, 2006 delivered to Agent prior to the date hereof) and (y) the portion of the Term A Loan made on account of such Real Property being sold (and still outstanding) or otherwise attributed thereto, is paid to Agent for application to the Term A Loan until the Term A Loan is paid in full (to be applied first to the accrued and outstanding interest with respect to the portion of the Term A Loan being prepaid and then, in inverse order of maturity, to the outstanding principal of the Term A Loan) and then to the remaining outstanding Revolving Loans (to be applied first to the accrued and outstanding interest with respect to the portion of the Revolving Loan being paid and then to the outstanding principal of such Revolving Loan) (this subsection (2) shall not be construed to mean that the Term A Loan is only secured by Borrowers' Real Property, as the Term A Loan is secured by all of the Collateral), (3) an Event of Default has not occurred and is not continuing and (4) the Borrowers deliver to Agent a Collateral Access Agreement, in form and substance satisfactory to Agent, with respect to such Real Property,
(iii) the issuance and sale by any Borrower or any Aftermarket Entity of Capital Stock of any Propcosuch Borrower or such Aftermarket Entity after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or such Aftermarket Entity, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or such Aftermarket Entity from such sale, (B) such Borrower or such Aftermarket Entity shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and/or any Aftermarket Entity to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers any Aftermarket Entities with Agent and Lenders or are more restrictive or burdensome to any Borrower or any Aftermarket Entity than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,or
(c) wind up, liquidate or dissolve except that any Guarantor (other than the Aftermarket Entities) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Creditoccurred.
Appears in 1 contract
Samples: Loan and Security Agreement (Proliance International, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that it, EXCEPT THAT:
(i) any Borrower Foreign Subsidiary of Parent (other than LS Holding) may, after prior written notice to Lender, merge or Guarantor consolidate with any other Foreign Subsidiary;
(ii) any Subsidiary of Parent incorporated in any State of the United States of America may merge with or and into or consolidate with any other US Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaParent, provided63 PROVIDED, thatTHAT, in each case each of the following conditions is satisfied as determined by Agent Lender, in good faith: (A) Agent Lender shall receive prompt have received not less than five (5) days prior written notice of any the intention of the parties to so merge or consolidate and such merger or consolidationinformation with respect thereto as Lender may request, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuingoccurred, (C) in Lender shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the case certificate or certificates of a merger between any Borrower as filed with each appropriate Secretary of State or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is other Governmental Authority, (D) the surviving corporation or limited liability company, such corporation or limited liability company entity shall have immediately upon the effectiveness of the merger expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements confirm in writing pursuant to which such Borrower or Guarantor is a partyan agreement, in form and substance reasonably satisfactory to AgentLender, its continuing liability in respect of the Obligations and in the case of a merger between any Borrower or Guarantor Financing Agreements and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, and (DE) Agent each Obligor shall ratify and confirm that its guarantees of the Obligations shall apply to the Obligations as assumed by such surviving entity,
(iii) any US Borrower or Parent may merge with and into or consolidate with any other corporation, PROVIDED, THAT, each of the following conditions is satisfied as determined by Lender, in good faith:
(A) Lender shall have received not less than thirty (30) days' prior written notice of the proposed merger and such information with respect thereto as Lender may request, including (1) the proposed date of the merger, (2) the name, address, jurisdiction of incorporation and federal identification number of the person with whom such US Borrower is merging, (3) a list and description of the assets to be acquired pursuant to such merger (including the addresses of the locations thereof and whether such locations are owned, leased or operated by a third party, and if leased or operated by a third party, the name and address of the lessor or third party), and (4) the total consideration to be paid in connection with such merger (and the terms of payment of such consideration),
(B) as of the date of such merger and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing,
(C) promptly receive upon Lender's request, Parent shall deliver, or cause to be delivered to Lender, true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of businessmerger,
(iiD) promptly upon Lender's request, Borrowers and Guarantors shall execute and deliver, or cause to be executed and delivered, to Lender such agreements, documents and instruments in connection with such merger as Lender may reasonably request, including, without limitation, UCC financing statements, Collateral Access Agreements and any amendments or supplements hereto,
(E) the sale assets and properties being acquired by such US Borrower or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in Parent pursuant to the merger shall be substantially consistent with, and related to, the business of any Borrower or Guarantor) Parent and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) its Subsidiaries as currently conducted as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iiiF) the issuance assets acquired by any US Borrower or Parent pursuant to such merger shall be free and sale by Parent clear of Capital Stock of Parent any security interest, mortgage, pledge, lien, charge or other encumbrance (other than Disqualified Capital Stock) after the date security interests and liens permitted under Section 9.8 hereof; provided), that, (A) if a Cash Dominion Period exists, Agent and Lender shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all have received evidence reasonably satisfactory to it of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofsame,
(ivG) the issuance acquisition by such Person of Capital Stock such assets pursuant to the merger shall not violate any law or regulation or any order or decree of any court or Governmental Authority binding on such Person in any material respect and shall not and will not conflict with or result in the breach of, or constitute a default in any respect under, any material agreement, document or instrument to which such Person is a party or may be bound, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property of Borrowers or Guarantors (other than as permitted under Section 9.8 hereof) or violate any provision of the Certificate of Incorporation or By-Laws of such Person,
(H) the terms and conditions of the merger shall be commercially reasonable and shall be negotiated in a BONA FIDE arms' length transaction with a person other than an Affiliate (Xxxxxxx is not an Affiliate for purposes of this Section),
(I) such US Borrower or Guarantor consisting of common stock pursuant Parent shall not become obligated with respect to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit any Indebtedness, nor any of its employeesproperty become subject to any security interest, directors and consultantsmortgage, providedpledge, thatlien, in no event shall such Borrower charge, hypothecation or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock other encumbrance pursuant to such stock plans merger unless US Borrower or 401(k) plans which would result in a Change of Control Parent could incur such Indebtedness or create such security interest, mortgage, pledge, lien or other Event of Default, and
(v) encumbrance hereunder or under the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or GuarantorFinancing Agreements,
(viJ) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent Lender shall have received, in form and substance reasonably satisfactory to Agent Lender, (A1) evidence that Agent Lender has a first priority valid and perfected first priority security interest interests in and lien liens upon the assets acquired pursuant to such merger subject to any liens as permitted in Section 9.8 hereof, (2) all Collateral Access Agreements and other consents, waivers, acknowledgments and other agreements from third persons which Lender may reasonably deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the assets acquired pursuant to such Capital Stock merger, (3) the agreement of the other party to the merger consenting to the collateral assignment by such US Borrower or Guarantor, of all rights and remedies and claims for damages of such US Borrower or Guarantor relating to the Collateral (including, without limitation, any bulk sales indemnification, if applicable) under the agreements, documents and instruments relating to such merger and (B4) such other agreements, documents and instruments as Agent Lender may reasonably request to effectuate the purpose and intent of clause (A) abovein connection therewith,
(xK) Lender shall have conducted a field examination with respect to the sale Person, its assets and its business with whom such US Borrower is merging and in no event shall any Inventory acquired by such US Borrower pursuant to such merger be deemed Eligible Inventory unless the results of Real Estate such field examination shall be satisfactory to Lender in all material respects (and Equipment the reporting with respect to such accounts and inventory shall have been incorporated into the accounting systems of Borrowers in a manner satisfactory to Lender), and then only to the extent the criteria for Eligible Inventory set forth herein are satisfied with respect thereto (or as modified by Lender in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (the Inventory acquired to reflect the results of Lender's field examination, including any separate advance percentage with respect to Inventory or any Reserves as Lender may determine, and upon the sale request of Lender, the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned Inventory acquired by such Propco)US Borrower pursuant to such merger shall at all times after such merger be separately identified and reported to Lender in a manner satisfactory to Lender,
(xiL) in no event shall the saletotal amount of all cash payments by Borrower or Parent in connection with such merger, transfer together with all amounts paid by US Borrower or other disposition by Parent in respect of purchases of Capital Stock under Section 9.10(g) hereof or assets of any Person under Section 9.10(h) hereof, exceed $2,000,000 in any calendar year and $4,000,000 in the Petro Companies to an Excluded Subsidiary of the franchise agreements between aggregate at any of the Petro Companies and its franchisees; time (provided, that, cash payments which represent Xxxxxxx Stock Sale Proceeds shall not be included as payments of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of cash for determining compliance with this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any BorrowerSection); provided, that, (AM) as of the date of such sale merger and after giving effect thereto (including the payment of all costs related to such merger), if the total amount of all payments by Borrower in connection with such merger, (i) equal or disposition are less than $500,000, the Excess Availability as of the date of such merger and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transactionnot less than $3,500,000, and (Cii) exceed $500,000, the Excess Availability as of the date of such sale or disposition merger and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall be not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof5,000,000,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Little Switzerland Inc/De)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each No Borrower and Guarantor shall, or shall not permit any Subsidiary to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any wholly-owned Subsidiary of a Borrower may merge with and into or consolidate with a Borrower any other wholly-owned Subsidiary of a Borrower, and any Borrower or Guarantor may merge with or into into, or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, Borrower; provided, thathowever, in each case that each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such intended merger or consolidation, which notice shall set forth in detail reasonably satisfactory to Agent the Persons that are merging or consolidating, which Person will be the surviving entity, the locations of the assets of the Persons that are merging or consolidating, and any Material Agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Governmental Authority (with a merger between any Borrower or Guarantor copy as filed promptly after such filing), and such newly formed corporation or limited liability company where such corporation or limited liability company is (v) the surviving corporation or limited liability companyPerson (if not already a Borrower) shall expressly confirm, such corporation or limited liability company shall have expressly confirmedratify and assume the Obligations, ratified this Agreement and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements all Other Documents to which such Borrower or Guarantor is a partythe Borrowers are then party in writing, in a form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person Equity Interests or any of its other assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,;
(ii) Permitted PP&E Dispositions;
(iii) the issuance and sale by Parent Company of Equity Interests after the Closing Date; provided, however, that, (a) the terms of such Equity Interests, and the terms and conditions of the purchase and sale thereof, shall not include any terms that contravene, or include any limitation on the right of any Borrower to amend or modify, any of the terms and conditions of this Agreement or any of the Other Documents, (b) after giving effect to such issuance and sale, no Change of Control shall have occurred and (c) the Net Cash Proceeds derived therefrom shall be paid to Revolver Agent for application to the Revolver Loan Debt in accordance with the Revolver Loan Agreement;
(iv) the issuance of Equity Interests of Parent Company pursuant to an employee stock option or grant or similar equity plan or 401(k) plan established for Borrowers' employees; provided, however, that no Change of Control shall result therefrom;
(v) the issuance of Equity Interests of Parent Company (including, without limitation, in connection with the exercise of warrants to purchase such Equity Interests) pursuant to and in accordance with the Warrant Agent Agreement and the Exchange Agreement, each as in effect on the Signing Date;
(vi) the sale or other disposition of Equipment Collateral not otherwise permitted in clauses (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantori) and (ii) above, if: (a) such sales or other dispositions do not involve Collateral having an aggregate fair market value in excess of the sale Materiality Threshold for all such Collateral disposed of Real Property or the Capital Stock in any Fiscal Year of any PropcoBorrowers; provided, that, (Ab) as of the date of any such sale or disposition other disposition, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, ; and (Bc) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds Net Cash Proceeds of the sale of such sale or disposition Collateral shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a2.3(b) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,this Agreement;
(vii) leases intercompany loans and dividend payments, among or subleases of Real Property between Borrowers, to the extent permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereofSections 7.3(d), (F7.4(h), 7.5(c) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,and 7.7(b);
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation except pursuant to any merger or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations consolidation made in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,0007.1(a); andor
(ed) agree to do any of the foregoing. Notwithstanding anything to , except if such agreement is conditioned on approval by the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum CreditAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it other than the Mergers and except that any Subsidiary of Parent (iother than a Borrower) any Borrower or Guarantor may merge with and into or consolidate with any other Subsidiary of Parent (other than a Borrower) and any Borrower (other than Parent) may merge with and into or consolidate with any other Borrower or and any Guarantor (including any Person which becomes incorporated in a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state jurisdiction in the United States of America which has no assets may merge with and into or liabilities solely for consolidate with any Borrower and 000000 Xxxxxxx Ltd. may amalgamate with PT Canada pursuant to the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaCanadian Subsidiary Amalgamation, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) except with respect to the Canadian Subsidiary Amalgamation, Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request within such ten (10) Business Day period, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, (vi) in the case of a merger or consolidation of a Guarantor with and into a Borrower, the Borrower shall be the surviving corporation and the amount of the liabilities (Dcontingent or otherwise) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating acquired by such Borrower pursuant to such merger or consolidationconsolidation shall not exceed the value of the assets acquired pursuant thereto and shall otherwise be acceptable to Agent, except in the event of the merger of Opelika with and into Xxxxxxx, Xxxxxxx may be the surviving corporation so long as within ten (10) days after the merger of Opelika with and into Xxxxxxx, Xxxxxxx as the survivor of such merger shall merge with and into Fieldcrest, with Fieldcrest as the surviving corporation, and (vii) in the case of the Canadian Subsidiary Amalgamation, such amalgamation shall occur within thirty (30) days after the date hereof; provided, further, that, prior in the event such amalgamation does not occur by such date, promptly upon the request of Agent, at its option, 5888747 Alberta Ltd. shall execute and deliver a guarantee with respect to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged Obligations and such security agreements with or consolidate into any Borrower or Guarantor respect to its assets and other than another Petro Companyagreements as Agent may request;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Real Property that is not subject to any Mortgage, or Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower Borrower, Guarantor or Guarantorany of their respective Subsidiaries), other than the Moveable Assets and other than the Excess Equipment, so long as (A) and the sale of such sales or other dispositions do not involve Real Property or the Capital Stock Equipment having an aggregate fair market value in excess of $1,000,000 for all such Real Property and Equipment disposed of in any Propco; provided, that, fiscal year of Borrowers or as Agent may otherwise agree and (AB) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each The Borrower shall not, and Guarantor shall not permit any Subsidiary of the Borrower to, directly or indirectly:,
(ai) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except that (i) any a Subsidiary of the Borrower or Guarantor may merge into or with or into or consolidate with any other the Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to wholly-owned domestic Subsidiary of the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faiththe Agent: (A) the Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of the Borrower to so merge or consolidate, and such merger or consolidationinformation with respect thereto as the Agent may reasonably request, (B) as of the effective date of the such merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (C) in the case Agent shall have received true, correct and complete copies of a all agreements, instruments and other documents relating to such merger, including, but not limited to, the certificate or certificates of merger between any as filed with each appropriate Secretary of State, (D) the Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is wholly-owned domestic Subsidiary shall be the surviving corporation or limited liability company, such corporation or limited liability company entity and shall have immediately upon the effectiveness of the merger expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements confirm in writing pursuant to which such Borrower or Guarantor is a partyan agreement, in form and substance reasonably satisfactory to the Agent, its continuing liability in respect of the Term Loan Obligations and in the case of Loan Documents to which it is a merger between any Borrower or Guarantor party and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, instruments and other documents and instruments as the Agent may reasonably request in connection therewith, (E) any Guarantor shall ratify and confirm that its guarantee of the Term Loan Obligations shall apply to the Term Loan Obligations as assumed by such surviving entity and ratify and confirm any other agreements by such Obligors in favor of the Agent, and (DF) Agent the surviving entity shall promptly receive truenot become obligated with respect to any Indebtedness, correct and complete copies nor any of all material agreementsits property become subject to any lien, documents and instruments relating to unless the Borrower could incur such merger Indebtedness or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Companycreate such lien hereunder;
(bii) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets assts to any other Person, except for:
(iA) sales of Inventory in the ordinary course of business,
(iiB) the sale or other disposition Disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of the Borrower) or other assets (other than any Collateral) no longer used in the conduct of its business so long as such sales or other Dispositions do not involve Equipment or such other assets (other than any Collateral) having an aggregate fair market value in excess of $3,000,000 for all such Equipment or other assets (other than Collateral) disposed of in any fiscal year of the Borrower or Guarantor) and the Net Cash Proceeds of such sale or other Disposition are applied in accordance with Section 2.05,
(C) sales or other Dispositions by the Borrower of Real Property assets or properties consisting of the Capital Stock of any PropcoMortgage Note Collateral; provided, that, as to each and all such sales or Dispositions, (A1) as of the date Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or disposition Disposition, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingsuch other information with respect thereto as the Agent may reasonably request, (B2) such sale or disposition shall be on commercially reasonable Disposition is consummated in accordance with the terms in a bona fide arms length transaction, (C) as and conditions of the date Mortgage Note Agreements and the Mortgage Note Intercreditor Agreement, and (3) the Net Cash Proceeds of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations other Disposition are applied in accordance with Section 6.4(a) hereof,2.05;
(iiiD) the issuance and or sale of Capital Stock by Parent the Borrower or any Subsidiary of the Borrower after the date hereof or as sales or issuances of Capital Stock issued by Subsidiaries formed or acquired to the extent permitted hereby; provided, that (1) in the case of any such sale or issuance of Capital Stock of Parent (other than Disqualified a Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock) after Stock of the date hereof; providedBorrower, that, (A) if a Cash Dominion Period exists, the Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such issuance and sale, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and (B) if a Cash Dominion Period exists, all of the net cash proceeds of which it is anticipated will be received by the sale and issuance of Borrower from such sale, (2) the Borrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof prior to March 31, 2005, except as otherwise permitted by Section 6.02(f), (3) the terms of Capital Stock, and the terms and conditions of the purchase and sale thereof, shall promptly be paid to Agent for application not include any terms that are more restrictive or burdensome to the Obligations Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof, (4) in the case of any such sale or issuance of Capital Stock of a Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock of the Borrower, after giving effect to such issuance or sale, no Event of Default shall exist or have occurred and be continuing and (5) the Net Cash Proceeds of such sale or other Disposition are applied in accordance with Section 6.4(a) hereof,2.05;
(iv1) the issuance of Capital Stock of any the Borrower consisting of common stock (and options therefor) in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof.
(2) the issuance of the PBGC Warrant and the Series C Participating Preferred Stock in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof, (3) the issuance of Capital Stock of the Borrower consisting of common stock pursuant to the exercise of options therefor that have been issued pursuant to the Plan of Reorganization as in effect on the date hereof or Guarantor pursuant to the exercise of its PBGC Warrant as in effect on the date hereof and (4) the issuance of Capital Stock to qualify directors to the extent required by applicable law in the ordinary course:
(F) the issuance of Capital Stock of the Borrower consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such the Borrower or Guarantor for the benefit of its employees, directors and consultants, ;
(G) the deposit of $450,000 on the date hereof in an escrow fund pursuant to which the Borrower becomes a contributing member of the GMP Multiemplover Plan in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof,
(H) the licensing by the Borrower or a Subsidiary of the Borrower of Intellectual Property owned by it to another Person: provided, that, in no event shall as to any such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant license: (1) the transaction with respect to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property license is an arm's length transaction in the ordinary course of business,
business of the Borrower or such Subsidiary, (vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii2) the sale Borrower or other disposition of Cash Equivalents for such Subsidiary receives at least fair market value with respect to the value of such license as determined by the Borrower in good faith, and (3) any rights of the ordinary course Borrower or such Subsidiary shall be subject to the rights of business,the Agent in such Intellectual Property, including, without limitation, the rights of the Agent to use such Intellectual Property in connection with the exercise of the Agent's rights and remedies with respect to the Collateral;
(ixI) Investments permitted by Section 6.02(e);
(J) sale and leaseback transactions with respect to Equipment, real property or other assets not constituting Collateral so long as the following conditions shall have been satisfied, (1) the issuance Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or leaseback and sale by any Borrower such other information with respect thereto as the Agent may reasonably request, (other than Parent2) after giving effect to such transaction no Default or Guarantor Event of its Capital Stock Default has occurred and is continuing, (other than Disqualified Capital Stock3) to another such transaction is an arm's length transaction and the Borrower or Guarantor; providedsuch Subsidiary, thatas the case may be, receives at least fair market value, as determined in good faith by the Borrower, in connection with such transaction and (4) the Agent shall have received, in form and substance reasonably satisfactory to Agent the Agent, a Collateral Access Agreement with respect to such Equipment, real property or other assets and (5) the Net Cash Proceeds of such transaction are applied in accordance with Section 2.05;
(K) discounts, settlement or compromise of Indebtedness evidenced by the Pabst Notes to the extent permitted by Section 6.02(s);
(iii) form or acquire any Subsidiaries, except, that, the Borrower may form or acquire Subsidiaries (to the extent permitted by subsection (i) above and Section 6.02(e)) after the date hereof; provided, that (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such saleformation or acquisition, transfer or disposition and after giving effect theretothereto or otherwise, no Default or Event of Default shall have occurred and be continuing, andoccurred
(xiia) with respect to such Subsidiary and (D) the sale or other disposition amount of assets of any the investment by the Borrower or Guarantor not otherwise permitted under in the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of such Subsidiary and any other amounts paid by the Borrower); provided, that, (A) as of to or in connection with the date formation or acquisition of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent Subsidiary shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of amount permitted under Section 9.7(b)(x) hereof6.02(e), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(civ) wind up, liquidate or dissolve dissolve, except that any Guarantor Subsidiary of the Borrower (other than a Guarantor) may wind up, . liquidate and dissolve, provided, thatdissolve so long as, each of the following conditions is satisfied, (iA) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (B) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary shall be duly and validly transferred and assigned to a its shareholders or its creditors, (C) upon the request of the Agent, the Borrower shall deliver to the Agent all agreements, instruments and other documents that the Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Subsidiary of the Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiD) no the Borrower or Guarantor such Subsidiary, as the case may be, shall assume not acquire any Indebtedness, obligations or material liabilities not otherwise permitted hereby as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of (E) the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vF) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of foregoing provided that any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date Borrower and its Subsidiaries may enter into agreements to effectuate any transaction otherwise prohibited by this Section 6.02(b) so long as (i) concurrently with the execution and delivery of any such saleagreement, lease, transfer, assignment, license, abandonment or disposition, no Default or Event the Borrower shall provide the Agent notice thereof and (ii) the consummation of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to any such agreement is conditioned upon obtaining the thirty-five (35%) percent consent of the Maximum CreditRequired Lenders or the repayment in full of the Term Loan Obligations in accordance with its terms hereof.
Appears in 1 contract
Samples: Term Loan Agreement (Anchor Glass Container Corp /New)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each No Borrower shall, and Guarantor no Borrower shall permit any Domestic Subsidiary to (and Lender does not authorize any Borrower to), directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (C) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidationit; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other PersonPerson (other than a Borrower or a Domestic Subsidiary that has executed in favor of Lender a guaranty of the Obligations and a security agreement granting Lender a first priority security interest in all of its assets, each in form and substance satisfactory to Lender), except for
for (i) sales of Inventory in the ordinary course of business,
, (ii) the sale or other disposition of Equipment so long as (including worn-out A) after any Event of Default or obsolete during any Availability Compliance Period (related to an Availability Triggering Event), any proceeds are paid to Lender and (B) such sales do not involve Equipment or having an aggregate fair market value in excess of Ten Million Dollars ($10,000,000) for all such Equipment no longer used or useful disposed of in any fiscal year of the relevant Borrower, (iii) transfers of Securitization Assets to a SPE in connection with a Securitization so long as (A) Lender has received an irrevocable license, in form and substance satisfactory to Lender, from the SPE to use the Intellectual Property included in the business Securitization Assets to dispose of or otherwise exercise its rights with respect to any Inventory, (B) Borrowers have received an irrevocable license, in form and substance satisfactory to Lender, from the SPE to use the Intellectual Property included in the Securitization Assets to conduct their business, and (C) Lender has received from Borrowers a sublicense, in form and substance satisfactory to Lender, extending Borrowers' licensed rights in the Intellectual Property included in the Securitization Assets to Lender, (D) receipt by Lender of an opinion of counsel to Borrowers to the effect that the Securitization Documents do not violate, breach or result in a Default under the Financing Agreements, in form and substance reasonably satisfactory to Lender, (iv) the issuance and sale by a Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propcosuch Borrower after the date hereof; provided, that, (A) that such sale of Capital Stock does not result in any Change in Control and as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets licensing by any Borrower of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of its Intellectual Property Property, in the ordinary course of its business,
, (viivi) leases or subleases disposition by any Borrower of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition any of Cash Equivalents for fair market value its warehouse space not necessary to such Borrower's business, in the ordinary course of such Borrower's business,
, (ixvii) the issuance and sale by any Borrower (other than Parent) or Guarantor sales of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; providedCash Equivalents, thatas provided under Section 9.10(b), Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (Bviii) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock sales of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property publicly traded securities owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existsBorrower, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with as provided under Section 6.4(a) hereof,9.10(c).
(c) wind up, liquidate or dissolve dissolve, except that any Guarantor Guess Licensing may wind up, liquidate and dissolve, provided, that, each or dissolve following the transfer by it of the following conditions is satisfied, (i) effective Securitization Assets owned by it upon such winding up, liquidation or dissolution, all the closing of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;Securitization; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. (a) Each Borrower Obligor shall not, and Guarantor shall not ensure that each Restricted Person shall not, directly or indirectly, do any of the following:
(ai) merge into or with or consolidate with any other Person person or permit any other Person person to merge into or with or consolidate with it except for the following:
(A) any US Group Member may merge into or with any other US Group Member or GLC; provided, however, that, in the case of any merger involving GLC, GLC shall be the surviving corporation;
(B) any Intermediate Holding Company (other than Holdings Bermuda or International Management) may merge into or with any other Intermediate Holding Company or GLC; provided, however, that, (x) in the case of any merger involving GLC, GLC shall be the surviving corporation and, (y) in the case of any merger involving LIW, other than a merger of LIW into GLC, LIW shall be the surviving corporation and (z) in the case of a merger of Holdings Bermuda or International Management, either Holdings Bermuda or International Management shall be the surviving corporation;
(C) any UK Group Member may merge into or with any other UK Group Member; provided, however, that, in the case of any merger involving the Borrower, the Borrower shall be the surviving corporation; and
(D) any Other Restricted Person may merge into or with any other Other Restricted Person; provided, however, that in the case of any merger involving Asia Pacific, Asia Pacific shall be the surviving corporation; and provided, further, that, after giving effect to such merger, all Share Capital of Asia Pacific shall be pledged to the Administrative Agent for the benefit of the Secured Parties;
(ii) sell, issue, assign, transfer or otherwise dispose of any Share Capital to any person except for sales or issuances by GLC of Share Capital of GLC in the extent permitted pursuant to Clause (vi) below and any sale, issuance, assignment, transfer or other disposition:
(A) of all of the outstanding Share Capital of any US Group Member to any other US Group Member or GLC;
(B) of all of the outstanding Share Capital of any Intermediate Holding Company (other than LIW and Holdings Bermuda) to any other Intermediate Holding Company or GLC;
(C) of all of the outstanding Share Capital of any UK Group Member to any other UK Group Member or the UK Borrower’s Parent; provided, however, that such transaction will be permitted solely if, concurrently with the consummation thereof (but after giving effect to such transaction), the Security Trustee, for the benefit of the Finance Parties, is granted a perfected security interest on such Share Capital to secure the Obligations with the same priority as the pledge of such Capital Stock to secure the Obligations entered into as of the date hereof (or as otherwise agreed by the Administrative Agent); and
(D) of all of the outstanding Share Capital of any Other Restricted Person other than Asia Pacific to any Other Restricted Person or Holdings Bermuda.
(iii) sell, assign, lease, transfer or otherwise dispose of any of its assets (other than sales of Share Capital) permitted by Clause (ii) above or Clause (iv) below to any other person (an “Asset Sale”) except for the following:
(A) sales of Inventory in the ordinary course of business;
(B) the disposition of worn-out or obsolete equipment or equipment no longer used in the business of such Restricted Person so long as (x) if an Event of Default exists or has occurred and is continuing, any proceeds are paid to the Lenders and (y) such sales do not involve equipment having an aggregate fair market value in excess of US$1,000,000 for all such equipment disposed of by the Restricted Person in any fiscal year or US$500,000 in the fiscal year in which the Final Maturity Date occurs;
(C) any sale, assignment, lease or other disposition by any US Loan Party to any other US Loan Party;
(D) any sale, assignment, lease or other disposition by any UK Group Member to any US Loan Party or any other UK Group Member;
(E) any sale, assignment, lease or other disposition by any Other Restricted Person to any Other Restricted Person;
(F) any sale, assignment, lease or other disposition by any UK Group Member to any Other Restricted Person; provided, however, that (x) no Default or Event of Default is continuing or would result therefrom, (y) such Asset Sale shall be for a fair market value and other consideration therefor shall be payable in cash and (z) that after giving effect to such Asset Sale, the UK Sale and Investment Amount shall not exceed US$7,500,000;
(G) any sale, assignment, lease or other disposition by any Restricted Person to any Subsidiary of GLC; provided, however, that (x) no Default or Event of Default is continuing or would result therefrom, (y) such Asset Sale shall be for fair market value and other consideration therefor shall be payable in cash and (z) that after giving effect to such Asset Sale, the Restricted Persons Sale and Investment Amount shall not exceed US$ 7,500,000;
(H) any sale, assignment or other transfer by any Other Restricted Person to any counterparty (other than to GLC or to any subsidiary of GLC) to any factoring arrangement in connection with any financing made in reliance on Clause 19.8(j) (Indebtedness);
(I) any Permitted Sale not otherwise permitted under this Clause (iii); and
(J) any sale or disposition by any Restricted Person permitted pursuant to the US Senior Credit Agreement (or permitted pursuant to a valid waiver or consent if the sale or disposition is otherwise prohibited by the US Senior Credit Agreement) but otherwise not permitted under the US Second Lien Credit Agreement; provided, however that the aggregate fair market value of such sales or dispositions made in reliance on this clause (ix) shall not exceed $5,000,000;
(iv) acquire (i) the Share Capital of any Borrower person in a transaction in which such Person would become a Subsidiary of such Restricted Person (or Guarantor may merge (ii) substantially all of the assets of any person (except, in each case of Clauses (i) and (ii) hereof, from a Restricted Person pursuant to a transaction permitted in Clauses 19.6(a), (b) or (c) above) or in connection with the formation of a Permitted Subsidiary;
(v) wind up, liquidate or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor dissolve except in connection with a Permitted Acquisition subject Liquidation;
(vi) issue or permit to remain outstanding any Share Capital other than (A) ordinary shares and, in the case of GLC, options and warrants to purchase any ordinary shares (B) in the case of any Subsidiary of GLC, preferred shares issued to a Restricted Person (to the terms of Section 9.21(d) hereof) extent the investment by such Restricted Person in such preferred shares is otherwise permitted under the US Second Lien Credit Agreement and (iiC) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States case of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaGLC, Permitted Holder Share Capital; provided, thathowever, in each case that each of the following conditions is satisfied as determined by Agent in good faith: the Administrative Agent:
(A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (C) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Administrative Agent shall have received true, correct and complete copies of all material agreements, documents and instruments evidencing or otherwise related to such sale-leasebackPermitted Holder Share Capital;
(B) such Permitted Holder Share Capital shall be and remain on terms and conditions satisfactory, (iii) as of the date of the consummation of such sale-leaseback including subordination terms, to each Agent and after giving effect theretoGLC shall not, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base indirectly, redeem, retire, defease, purchase or if a Cash Dominion Period exists, all of the net cash proceeds of otherwise acquire such sale-leaseback shall promptly be paid to Agent Permitted Holder Share Capital or set aside or otherwise deposit or invest any sums for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000purpose; and
(eC) GLC shall furnish to the Administrative Agent all notices or demands in connection with such Permitted Holder Share Capital either received by GLC or on its behalf promptly after the receipt thereof, or sent by GLC or on its behalf concurrently with the sending thereof, as the case may be, or
(vii) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor .
(other than a Petro Companyb) shall, prior to the Petro Existing Security Agreement Termination DateGLC shall not permit any of its Unrestricted Subsidiaries to, sell, assign, lease, transfer, assign, license, abandon transfer or otherwise dispose any of any Capital Stock, Indebtedness or other its assets to a Petro Company unless, as out of the date ordinary course of business except for:
(i) financing transactions including secured financings and factoring arrangements, entered into by any such saleUnrestricted Subsidiary;
(ii) transactions solely between or among GLC and any Subsidiary of GLC or solely between or among two or more Subsidiaries of GLC (including, leasein each case, transfercapital contributions, assignmentdividends and other distributions, licenseloans, abandonment or dispositionmergers, no Default or Event of Default shall have occurred consolidations, liquidations, and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.dissolutions); and
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate or amalgamate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor wholly-owned Subsidiary of Parent may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms wholly-owned Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaParent, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (Dvi) Agent shall promptly receive truein any merger, correct and complete copies consolidation or amalgamation involving a Borrower, the surviving entity of all material agreementssuch merger, documents and instruments relating to such merger consolidation or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company amalgamation shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Companya Borrower;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $350,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree,
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive the Loan or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the Net Cash Proceeds of the sale and issuance of such Capital Stock shall be paid in accordance with the terms of Sections 2.3 and 6.4 hereof (subject to the terms of the Intercreditor Agreement),and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,and
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, providedPROVIDED, thatTHAT, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition by Parent to WHX of Cash Equivalents for fair market value in all of the ordinary course issued and outstanding shares of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantorin Indiana Tube Danmark A/S, a corporation organized under the laws of Denmark; providedPROVIDED, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, thatTHAT, as of the date of such sale, transfer sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and;
(xiivi) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than Fairfield Property, the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower)Laredo Property and the North Attleboro Property; providedPROVIDED, thatTHAT, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms arm's length transactiontransaction with a Person that is not an Affiliate of a Borrower, (C) Administrative Borrower shall furnish Agent with prior written notice of such sale or disposition (together with such information relating thereto as of Agent shall reasonably request), (D) on the closing date of such sale or disposition and after giving effect theretodisposition, the aggregate net book value applicable Borrower shall receive Net Cash Proceeds of all not less than $1,500,000 in the case of the assets so sold or disposed of Fairfield Property, $400,000 in any fiscal year of Parent shall not exceed $20,000,000, (D) as the case of the date Laredo Property and $1,000,000 in the case of the North Attleboro Property, and (E) the Net Cash Proceeds from such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations are applied in accordance with Section 6.4(a) hereof,2.3(c)(iii);
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor to a Borrower, (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) Borrower), and (ii) any Borrower or Guarantor may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Borrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $4,000,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree,
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) as of the date Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or disposition Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and after giving effect thereto, no Default sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Event of Default shall have occurred and be continuingGuarantor from such sale, (B) such sale Borrower or disposition Guarantor shall not be on commercially reasonable terms required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in a bona fide arms length transactionrespect thereof, except as otherwise permitted in Section 9.11 hereof and except after the end of the then current term of this Agreement and the payment in full in cash or other immediately available funds of all of the Obligations, (C) as the terms of such Capital Stock, and the terms and conditions of the date of such purchase and sale or disposition and after giving effect theretothereof, Excess Availability plus Unrestricted Cash shall not be less include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than $20,000,000the terms of any Capital Stock in effect on the date hereof, (D) such except with respect to any sale and issuance of Capital Stock of Parent or disposition shall not be Operating and as to the other Borrowers and Guarantors and their respective Subsidiaries, except as Agent may otherwise agree in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existswriting, all of the net cash proceeds of the sale and issuance of such sale or disposition Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
hereof and (iiiE) the issuance and sale by Parent as of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period existsafter giving effect thereto, all no Default or Event of the net cash proceeds of the sale and issuance of such Capital Stock Default shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofexist or have occurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease sales or other disposition dispositions by any Borrower of assets in connection with the closing or sale of any a retail store location of such Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases such Borrower's business which consist of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value leasehold interests in the ordinary course premises of business,
(ix) such store, the issuance Equipment and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all fixtures located at such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco premises and the leaseback books and records relating exclusively and directly to the operations of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchiseesstore; provided, that, as of to each and all such sales and closings, (A) on the date of such saleof, transfer or disposition and after giving effect theretoto, no Default any such closing or Event sale, the number of Default (1) retail store locations operated by Retail closed or sold by Borrowers in any fiscal year minus the number of retail stores operated by Retail opened by Borrowers in such fiscal year, shall have occurred not exceed the amount equal to ten (10%) percent of the number of retail store locations of Borrowers operated by Retail and be continuing(2) retail store locations operated by Factory closed or sold by Borrowers in any fiscal year minus the number of retail stores operated by Factory opened by Borrowers in such fiscal year, and
shall not exceed the amount equal to thirty (xii30%) percent of the sale or other disposition number of assets retail store locations of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); providedBorrowers operated by Factory, that, (A) in each case as of the date end of the immediately preceding fiscal year, but in no event shall the aggregate amount of all sales at all of the store locations (including both stores operated by Retail and Factory) closed or sold by Borrowers in any fiscal year have been more than $50,000,000 in the immediately preceding fiscal year, (B) Agent shall have received not less than ten (10) Business Days prior written notice of such sale or disposition and after giving effect theretoclosing, no Default or Event of Default which notice shall have occurred and be continuingset forth in reasonable detail satisfactory to Agent, (B) the parties to such sale or disposition shall other disposition, the assets to be on commercially reasonable terms in a bona fide arms length transactionsold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale or other disposition and after giving effect thereto, the aggregate net book value no Event of all of the assets so sold Default shall exist or disposed of in any fiscal year of Parent shall not exceed $20,000,000have occurred and be continuing, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arm's length transaction, and (E) any and all proceeds payable or delivered to such Borrower in respect of such sale or other disposition shall be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the terms of this Agreement (except to the extent such proceeds reflect payment in respect of Indebtedness secured by a properly perfected first priority security interest in the assets sold, in which case, such proceeds shall be applied to such indebtedness secured thereby),
(vi) the grant by any Borrower or Guarantor after the date hereof of a non- exclusive license or an exclusive license to any person for the use of any Intellectual Property consisting of trademarks owned by such Borrower or Guarantor; provided, that, as to any such license, each of the following conditions is satisfied, (A) such license is only for the use of trademarks in the manufacture, distribution or sale of products outside the United States of America and Canada or, if such license is for the use of such trademarks in the manufacture, distribution or sale of products within the United States of America or Canada, it is only for categories or types of Inventory other than men's or women's wearing apparel of the type or category being sold by any Borrower or Guarantor as of the date of this Agreement or that Borrower and Guarantors do not manufacture, distribute or sell, (B) such licenses shall be on commercially reasonable prices and terms in a bona fide arms' length transactions, (C) in the case of a non-exclusive license, the rights of the licensee shall be subject to the rights of Agent, and in the case of any license, shall not adversely affect, limit or restrict the rights of Agent to use any Intellectual Property of a Borrower or Guarantor to sell or otherwise dispose of any Inventory or other Collateral, (D) Agent shall have received, true, correct and complete copies of the executed license agreement, promptly upon the execution thereof and (E) as of the date of the grant of any such sale or disposition license, and after giving effect thereto, Excess Availability plus Unrestricted Cash no Event of Default shall not exist or have occurred and be less continuing,
(vii) sales, transfers and dispositions to Operating or a Subsidiary of Operating (other than $20,000,000an Inactive Subsidiary); provided, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that that, any such sale-leaseback transaction sales, transfers or dispositions involving a Subsidiary that is not a Borrower or Guarantor shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included made in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance compliance with Section 6.4(a) 9.12 hereof,
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower its shareholders, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor to such shareholders, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoingforegoing set forth in subsections (a) through (c) of this Section 9.7. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.84
Appears in 1 contract
Samples: Loan and Security Agreement (J Crew Operating Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and each Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of RII (iother than Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of RII (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother than Borrower), provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (iv) Agent shall have occurred received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the certificate or certificates of merger to be continuingfiled with each appropriate Secretary of State (with a copy as filed promptly after such filing), (Cv) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or GuarantorGuarantors) and the sale so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of $5,000,000 for all such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment in any fiscal year of Borrower or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existsas Agent may otherwise agree, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,and
(iii) the issuance and sale by Parent Borrower or any Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) Borrower or such Guarantor after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such issuance and sale by Borrower or such Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and (B) if a Cash Dominion Period exists, all sale of such stock and the net cash proceeds of which it is anticipated will be received by Borrower or such Guarantor from such sale, (B) Borrower or such Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the sale and issuance terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or the right of Borrower and Guarantors to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower and Guarantors with Agent and Lenders or are more restrictive or burdensome to Borrower and Guarantors than the terms of any Capital Stock in effect on the date hereof, and (D) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofexist or have occurred,
(iv) the issuance of Capital Stock of any Borrower or any Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or such Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or such Guarantor be required to issue, or shall such Borrower or such Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the salesale by Borrower to Dearborn Industrial Generation L.L.C. ("DIG") of the Real Property subject to the Ground Lease, transferdated as of June 30, lease1999, sublease or other disposition of assets of any between Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property as lessor and DIG as lessee, as set forth in the ordinary course Purchase Option Agreement, dated as of business,
(vii) leases or subleases May 31, 2000, by and among DIG, Borrower and Ford Motor Company, as in effect on the date hereof, a true, correct and complete copy of Real Property permitted under Section 9.8(m) or 9.12 which has been delivered to Agent prior to the date hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; , provided, that, Borrower shall provide Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale notice of the Capital Stock intention of DIG to exercise such option immediately upon receipt of any Propco and the leaseback of Real Property and Equipment owned notice by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date Borrower of such sale, transfer or disposition and after giving effect thereto, no Default or Event intention of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower)DIG; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,or
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each No Borrower and Guarantor shall, or shall not permit any Subsidiary to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except that (i) any wholly-owned Subsidiary of a Borrower may merge with and into or consolidate with a Borrower any other wholly-owned Subsidiary of a Borrower, and any Borrower or Guarantor may merge with or into into, or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, Borrower; provided, thathowever, in each case that each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such intended merger or consolidation, which notice shall set forth in detail reasonably satisfactory to Agent the Persons that are merging or consolidating, which Person will be the surviving entity, the locations of the assets of the Persons that are merging or consolidating, and any Material Agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Governmental Authority (with a merger between any Borrower or Guarantor copy as filed promptly after such filing), and such newly formed corporation or limited liability company where such corporation or limited liability company is (v) the surviving corporation or limited liability companyPerson (if not already a Borrower) shall expressly confirm, such corporation or limited liability company shall have expressly confirmedratify and assume the Obligations, ratified this Agreement and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements all Other Documents to which such Borrower or Guarantor is a partythe Borrowers are then party in writing, in a form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person Equity Interests or any of its other assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,;
(ii) Permitted PP&E Dispositions;
(iii) the issuance and sale by Parent Company of Equity Interests after the Closing Date; provided, however, that, (a) the terms of such Equity Interests, and the terms and conditions of the purchase and sale thereof, shall not include any terms that contravene, or include any limitation on the right of any Borrower to amend or modify, any of the terms and conditions of this Agreement or any of the Other Documents, (b) after giving effect to such issuance and sale, no Change of Control shall have occurred, and (c) the Net Cash Proceeds derived therefrom shall be paid to Agent for application to the Obligations in accordance with Section 2.12(f) hereof;
(iv) the issuance of Equity Interests of Parent Company pursuant to an employee stock option or grant or similar equity plan or 401(k) plan established for Borrowers' employees; provided, however, that no Change of Control shall result therefrom;
(v) the issuance of Equity Interests of Parent Company (including, without limitation, in connection with the exercise of warrants to purchase such Equity Interests) pursuant to and in accordance with the Warrant Agent Agreement and the Exchange Agreement, each as in effect on the Signing Date;
(vi) the sale or other disposition of Equipment Collateral not otherwise permitted in clauses (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantori) and (ii) above, if: (a) as such sales or other dispositions do not involve Collateral having an aggregate fair market value in excess of the sale Materiality Threshold for all such Collateral disposed of Real Property or the Capital Stock in any Fiscal Year of any PropcoBorrowers; provided, that, (Ab) as of the date of any such sale or disposition other disposition, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, ; and (Bc) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds Net Cash Proceeds of the sale of such sale or disposition Collateral shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a2.12(f) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,this Agreement;
(vii) leases intercompany loans and dividend payments, among or subleases of Real Property between Borrowers, to the extent permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereofSections 7.3(d), (F7.4(h), 7.5(c) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,and 7.7(b);
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation except pursuant to any merger or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations consolidation made in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,0007.1(a); andor
(ed) agree to do any of the foregoing. Notwithstanding anything to , except if such agreement is conditioned on approval by the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum CreditRequired Lenders.
Appears in 1 contract
Samples: Credit and Security Agreement (Lexington Precision Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and each Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) it, except, that, Guarantor or any wholly owned Subsidiary of Guarantor or Borrower or Guarantor may merge with or and into or consolidate with Borrower or any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms wholly owned Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithAgent: (Ai) Agent shall receive prompt have received not less than five (5) days’ prior written notice of the consummation of any such merger or consolidationconsolidation of Borrower or any Guarantor to so merge or consolidate and such information with respect thereto as Agent may reasonably request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or Default, shall exist or have occurred and be continuingoccurred, (C) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (Diii) Agent shall promptly receive have received, true, correct and complete copies of all material agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity of a merger between Borrower and any Guarantor or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company a merger between Borrower and any other Subsidiary of Borrower or any Guarantor shall be merged with or consolidate into Borrower, and (v) the surviving entity of a merger between any Guarantor and any other Subsidiary of Borrower or any Guarantor other than another Petro Companyshall be a Guarantor;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition (other than in connection with the closing or sale of Equipment (including a retail store location) of worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or any Guarantor;
(iii) the issuance and the sale by Borrower or any Guarantor of Real Property or the Capital Stock of any PropcoBorrower or such Guarantor after the date hereof; provided, that, (A) Borrower or such Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or the right of Borrower and Guarantors to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower and Guarantors with Agent and Lenders or are more restrictive or burdensome to Borrower or Guarantors than the terms of any Capital Stock in effect on the date hereof, (C) except as Agent may otherwise agree in writing or as is otherwise permitted in Section 9.9(l)(iii)(B)(2) hereof and subject to the terms of the Term Loan Intercreditor Agreement, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent (or Term Loan Agent, as applicable) for application to the Obligations in such order and manner as Agent may determine so long as a Cash Dominion Event has occurred and is continuing, and (D) in no event shall Borrower or Guarantors issue or sell Capital Stock which would result in a Change of Control or would result in any Subsidiary ceasing to be wholly owned (directly or indirectly) by Borrower;
(iv) sales or other dispositions of assets in connection with the closing or sale of a retail store location, warehouse or distribution center in the ordinary course of business which consist of leasehold interests in the premises of such facility, the Equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such facility; provided, that, as to each and all such sales, (A) on the date of, and after giving effect to, any such sale of a retail store, in any calendar year, Borrower and each Guarantor shall not have closed or sold retail store locations (excluding any retail store locations closed or sold pursuant to “in-market” relocations so long as the Borrower or its Subsidiaries have opened another retail store location in such market within the nine (9) month period following such closure or sale) accounting for more than five (5%) percent of all sales of Borrower and its Subsidiaries in the immediately preceding twelve (12) month period, (B) Agent shall have received not less than three (3) Business Days prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (BD) such sale or disposition shall be on commercially reasonable prices and terms in a bona fide arms arm’s length transaction, and (CE) as subject to the terms of the date Term Loan Intercreditor Agreement, any and all net proceeds payable or delivered to Borrower in respect of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or other disposition shall not be paid or delivered, or caused to be paid or delivered, to Agent (or Term Loan Agent, as applicable) in connection accordance with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of this Agreement (or the Term Loan Agreement, as applicable),
(v) Permitted Sale Leasebacks; and
(vi) additional sales or other dispositions of assets by Borrower or any of its Subsidiaries not otherwise permitted pursuant to this Section 9.7(b)(x9.7(b) hereof), (E) if in an amount not to exceed $5,000,000 in any fiscal year and an amount not to exceed $15,000,000 during the Equipment term of this Agreement; provided that any Net Cash Proceeds received from such asset sales or Real Property to dispositions shall be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations applied in accordance with Section 6.4(a2.4(b)(ii) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, Term Loan Agreement; and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor or any Subsidiary may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Guarantor or Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which Borrower or such Guarantor is a party or may be bound, (iii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor or Subsidiary shall be duly and validly transferred and assigned to a Borrower or another such Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent or as permitted under Section 9.8 of this Agreement (iiand Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor or Subsidiary to Borrower, or such Guarantor, as applicable, (iv) Agent shall have received all documents and agreements that any Borrower or such Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no neither Borrower or nor any Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than five (5) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to foregoing unless the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as consummation of the date of any applicable agreement is contingent upon Borrower’s obtaining Agent and Lenders’ consent to such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credittransaction.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower Section 9.7(a) of the Loan Agreement is hereby amended by deleting such Section in its entirety and Guarantor shall not directly or indirectlyreplacing it with the following:
(a) merge into or with or consolidate or amalgamate with any other Person or permit any other Person to merge into or with or consolidate or amalgamate with it it, except that (ix) any Borrower or Guarantor Subsidiary of Parent may merge with or and into or consolidate or amalgamate with any other Borrower Subsidiary of Parent, and (y) any Subsidiary of Parent may merge with and into or Guarantor (including consolidate or amalgamate with any other Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaAcquisition, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such merger Subsidiaries to so merge, consolidate or consolidationamalgamate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging, consolidating or amalgamating, which person will be the surviving entity, the locations of the assets of the persons that are merging, consolidating or amalgamating, and the material agreements and documents relating to such merger, consolidation or amalgamation, (Bii) Agent shall have received such other information with respect to such merger, consolidation or amalgamation as Agent may reasonably request, (iii) as of the effective date of the merger merger, consolidation or consolidation amalgamation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger, consolidation or amalgamation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyentity shall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (Dvi) Agent shall promptly receive truein any merger, correct and complete copies of all material agreements, documents and instruments relating to such merger consolidation or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any amalgamation involving a Borrower or Guarantor) and , the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date surviving entity of such sale merger, consolidation or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition amalgamation shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for Guarantor, and in any merger, consolidation or amalgamation involving a Person that is not a Subsidiary of Parent, the benefit surviving entity of its employeessuch merger, directors consolidation or amalgamation shall become a Subsidiary of Parent, and consultants, provided, that, (vii) in no event shall such any Accounts or Inventory acquired by a Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans a merger, consolidation or 401(k) plans which would result in a Change of Control amalgamation be deemed to be Eligible Accounts or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Eligible Inventory until Agent shall have received, in form and substance reasonably conducted due diligence with respect thereto that is satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application then only to the Obligations in accordance extent that the criteria for Eligible Accounts and Eligible Inventory are satisfied with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit”.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that that
(i) any Borrower or Guarantor Domestic Subsidiary may merge with or and into or consolidate with any other another Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaGuarantor, provided, that, in each case each of the following conditions is satisfied as determined by Agent Lender in good faith: (A) Agent Lender shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Borrower or Guarantor to so merge or consolidate, which notice shall set forth in reasonable detail, the Domestic Subsidiary that is merging or consolidating with such Borrower or Guarantor, the locations of the assets of the Domestic Subsidiary that is merging or consolidating with such Borrower or Guarantor, and the material agreements and documents relating to such merger or consolidation, (B) in the event a Borrower is the Parent, Parent shall be the surviving entity of such merger or consolidation, (C) Lender shall have received such other information with respect to such merger or consolidation as Lender may reasonably request within a reasonable time of such requests, (D) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (CE) in Lender shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (F) the surviving corporation or limited liability companyPerson shall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, Lender and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, and (DG) Agent each Guarantor shall promptly receive trueratify and confirm that its guarantees of the Obligations shall apply to the Obligations as assumed by such surviving entity;
(ii) any Foreign Subsidiary may merge or consolidate with and into any other Foreign Subsidiary or any other Person (other than a Borrower or Guarantor), correct provided, that, (A) Lender shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Foreign Subsidiary to so merge or consolidate, which notice shall set forth the Foreign Subsidiary that is merging or consolidating, the person with whom such Foreign Subsidiary is merging or consolidating and complete copies of all the material agreements, agreements and documents and instruments relating to such merger or consolidation; provided, further(B) a Foreign Subsidiary shall be the surviving entity of such merger or consolidation, thatexcept that a Foreign Subsidiary may not be the surviving entity of such merger or consolidation so long as the terms and conditions of Section 9.7(b)(vi) below are satisfied with respect to such merger or consolidation, prior (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing, (D) to the Petro Existing Security Agreement Termination Dateextent such merger or consolidation is with a Person which is not another Foreign Subsidiary, to the extent any Borrower is a guarantor of the Indebtedness of such Foreign Subsidiary, Lender shall have received evidence that such Borrower or Guarantor has been released from such guarantee and (E) in no Petro Company event shall be merged with or consolidate into any Borrower or Guarantor make, or be required to make, any payment or incur any obligation or liability in connection with such merger or consolidation or take any other than another Petro Companyaction which is otherwise prohibited hereunder (except to the extent that it may otherwise be permitted to do so in this Agreement);
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including any worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or GuarantorGuarantor (provided, that, any such Equipment shall not have been included in the appraisal(s) of Equipment used by Lender to determine Fixed Asset Availability) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $100,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Lender may otherwise agree, and
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Lender shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Lender or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Lender may otherwise agree in writing, all of the Net Cash Proceeds of the sale and issuance of such Capital Stock shall be paid to Lender for application to the Obligations in accordance with Section 6.4 hereof, and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease or other disposition sale by any Foreign Subsidiary of its assets in the ordinary course of any Borrower or Guarantor to another Borrower or Guarantorits business consistent with its practices as in effect on the date hereof,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) Foreign Subsidiary of all or Guarantor any substantial portion of its assets or the sale by any Foreign Subsidiary of any of the Capital Stock (other than Disqualified Capital Stock) to of another Borrower Foreign Subsidiary owned by such Foreign Subsidiary or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale by Borrower of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale any of the Capital Stock of any Propco and Foreign Subsidiary or the leaseback merger or consolidation of Real Property and Equipment owned by such Propcoany Foreign Subsidiary with any other Person (other than another Foreign Subsidiary),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as to any such sale, merger or consolidation, each of the date following conditions is satisfied:
(A) Lender shall have received not less than ten (10) Business Days’ prior written notice of such sale, transfer merger or disposition and after giving effect theretoconsolidation, no Default or Event of Default which notice shall have occurred and be continuingset forth in reasonable detail satisfactory to Lender, and
(xii) the parties to such sale or other disposition (or merger or consolidation as the case may be), the assets to be sold or otherwise disposed of, the purchase price (or merger consideration) and the manner of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above payment thereof and such other information with respect thereto as Lender may request,
(other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (AB) as of the date of such sale or other disposition (or merger or consolidation as the case may be) and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, ,
(BC) such sale (or disposition merger or consolidation as the case may be) shall be on commercially reasonable prices and terms in a bona fide arms arm’s length transaction,
(D) at all times during the existence of a Cash Dominion Event, (C) as of the date any and all Net Cash Proceeds payable to any Borrower or Guarantor in respect of such sale (or disposition and after giving effect thereto, merger or consolidation as the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (Dcase may be) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed paid (or in the case of any consideration other than in the form of cash or other immediately available funds to be received by the terms of Section 9.7(b)(x) hereofsuch Borrower or Guarantor, delivered), (F) if any of the assets or caused to be sold paid or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existsdelivered, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent Lender for application to the Obligations in accordance with Section 6.4(a6.4 hereof without permanent reduction in the Maximum Credit (or in the case of any consideration other than in the form of cash or other immediately available funds to be received by such Borrower or Guarantor to be held by Lender as part of the Collateral),
(E) hereofto the extent any Borrower or Guarantor is a guarantor of any Indebtedness of the Foreign Subsidiary to be so sold or otherwise disposed of , such Borrower or Guarantor shall be released from such guarantee, and
(vii) as to any such merger or consolidation, all of the conditions of Section 9.7(a)(ii) shall be satisfied (other than the condition that a Foreign Subsidiary be the surviving entity of such merger or consolidation),
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Lender (and Lender shall have received such evidence thereof as Lender may require) and Lender shall have received such deeds, assignments or other agreements as Lender may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower, (iiiv) Agent Lender shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent Lender shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor wholly-owned Subsidiary of Parent may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms wholly-owned Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaParent, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, therewith and (Dvi) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating if a Borrower is a party to such merger merger, a Borrower is the surviving entity (it being understood that no Accounts or consolidation; provided, further, that, prior to Inventory in the Petro Existing Security Agreement Termination Date, no Petro Company shall business of any Subsidiary of Parent that is not a Borrower will be merged with deemed Eligible Accounts or consolidate into any Borrower or Guarantor other than another Petro CompanyEligible Inventory without the approval of Agent and all Lenders);
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $500,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree,
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the saleissuance of Capital Stock of Parent, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,and
(vi) the grant of non-exclusive licenses of Intellectual Property other sales not to exceed $1,000,000 in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by aggregate during any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent fiscal year so long as (A) evidence that Agent no Event of Default has a valid occurred and perfected first priority security interest in and lien upon all such Capital Stock is continuing or would result therefrom and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to are deposited in the Obligations in accordance with Section 6.4(a) hereof,Lockbox Accounts.
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor to a Borrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Commerce Energy Group Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower --------------------------------------------------------- shall not, and Guarantor shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor may merge with or and into or consolidate with any the other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: Lender:
(Ai) Agent Lender shall receive prompt have received not less than ten (10) days prior written notice of any the intention of such merger Borrower to so merge or consolidationconsolidate and such information with respect thereto as Lender may request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (Ciii) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company Lender shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive received true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, furtherincluding, thatbut not limited to, prior the certificate or certificates of merger or consolidation to be filed with each appropriate Secretary of State or other Governmental Authority (and promptly after such merger or consolidation is effective, as such certificate or certificates of merger or consolidation have been filed with each appropriate Secretary of State or other Governmental Authority), and (iv) each Obligor shall ratify and confirm that its guarantees of the Obligations shall apply to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;Obligations as assumed by such surviving entity; or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment any of the embroidery equipment listed on Schedule 1.36 hereto and the Real Property of Borrower located at Planta Jupiter, Contigua al Motel Amar, San Francisco de Dos Xxxx, San Xxxx, Costa Rica,
(including iii) the disposition of worn-out or obsolete Equipment or Equipment no longer used or useful so long as such disposition shall not, in the business good faith determination of Lender, have a material adverse effect on the condition (financial or otherwise), business, performance, operations or properties of such Borrower; the ability of Borrower to repay the Obligations or of such Borrower to perform its obligations under this Agreement or any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofother Financing Agreements,
(iiiiv) the issuance and sale by Parent Duck Head of Capital Stock of Parent (other than Disqualified Capital Stock) Duck Head after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent Lender shall receive prompt have received not less than ten (10) Business Days prior written notice of such issuance and sale by Duck Head, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and (B) if a Cash Dominion Period exists, all sale of such stock and the net cash proceeds of which it is anticipated will be received by Borrower from such sale, (B) Borrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof except as permitted in Section 9.11 hereof, (C) the sale and issuance terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Duck Head to request or receive Loans or Letter of Credit Accommodations or the right of Duck Head to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Duck Head with Lender are more restrictive or burdensome to Duck Head than the terms of any Capital Stock in effect on the date hereof, and (D) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,exist or have occurred;
(ivv) the issuance of Capital Stock of any Borrower or Guarantor Duck Head consisting of common stock pursuant to an employee (A) a stock option or grant or similar equity plan, 401(k) plan or 401(k) plans incentive stock award plan of such Borrower or Guarantor Duck Head for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor Duck Head be required to issue, or shall such Borrower or Guarantor Duck Head issue, Capital Stock pursuant to such stock plans or option plan, 401(k) plans plan or incentive stock award plan which would result in a Change of Control or other an Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreementsthe option granted to Xxxxxx X. Xxxxxx to purchase up to 1,000,000 shares of DH Apparel Company, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of Inc. common stock on the date six (6) months after the distribution of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application DH Apparel Company's stock to the Obligations in accordance with Section 6.4(ashareholder's of Woodside at a purchase price equal to the average daily closing stock price for DH Apparel Company, Inc. common stock for the six (6) hereof,month period following the distribution;
(c) form or acquire any Subsidiaries other than those listed on the Information Certificate;
(d) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; andor
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (A) Agent shall receive have received prompt written notice of any such merger or consolidation, consolidation and (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default shall have occurred and be continuing, and (ii) any subsidiary of Parent (other than a Borrower) may consolidate with any other wholly-owned Subsidiary of Parent (other than any Borrower), provided, that, each of the following conditions is satisfied: (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (B) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default shall have occurred and be continuing, (CD) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (E) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) ), provided, that, at all times prior to the termination of the Tranche B Commitments and the sale payment in full of Real Property the Tranche B Loans, such sales or the Capital Stock other dispositions do not involve Equipment having an aggregate fair market value in excess of $5,000,000 for all such Equipment disposed of in any Propcofiscal year of Borrowers or such larger amount as Agent may otherwise agree; provided, that, subject to the Qualified Debt Intercreditor Agreement (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereofif applicable), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by at any Propco) is included in the Borrowing Base or if time a Cash Dominion Period Event exists, all of the net cash proceeds of any such sale or other disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a2.4(d) hereof,
(iii) the issuance and sale by Parent Controlling Parent, any Borrower or Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) such Borrower or Guarantor after the date hereof, including a pursuant to a Qualified Public Offering; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof prior to the date that is 60 days after the Maturity Date if the Obligations have paid and satisfied in full by such date, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock issued by a Borrower or Guarantor (other than Parent or Controlling Parent), and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or adversely affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) except as Agent may otherwise agree in writing, at any time a Cash Dominion Period Event exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofthe terms of this Agreement,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the saleassets set forth on Schedule 9.7,
(vi) the abandonment of Intellectual Property that is, transferin the reasonable judgment of Parent, leaseno longer valuable in any material respect or economically practicable to maintain or useful in the conduct of the business of Borrowers and Guarantors, sublease taken as a whole,
(vii) at all times upon and after the termination of the Tranche B Commitments and the payment in full of the Tranche B Loans, the sale or other disposition of assets of any Borrower or Guarantor to another (including Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor,
(vi) the grant other than Accounts, Inventory, Capital Stock of non-exclusive licenses any Subsidiary of Parent, and Intellectual Property in the ordinary course of business,
(vii) leases Property, so long as such sales or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents dispositions are for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, to such disposition no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, in the event such sales or other dispositions involve assets having an aggregate fair market value in excess of $5,000,000 (Aor in such larger amount as Agent may agree) as for all such assets disposed of in any fiscal year of Borrowers, on the date of such sale or disposition and after giving effect thereto, (A) (1) Agent shall have received no Default or less than five (5) Business Days notice of any such sale, (2) no Event of Default shall have occurred and be continuing, (B3) the consideration received by such sale Borrower or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash Guarantor shall not be for less than $20,000,000, fair market value and (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof4), (F) subject to the Qualified Debt Intercreditor Agreement, if applicable, at any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if time a Cash Dominion Period Event exists, all of the net cash proceeds of any such sale or other disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(aterms hereof, or (B) hereof,on such terms as Agent may otherwise agree, and
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may reasonably require) and Liens permitted hereunder and Agent shall have received such deeds, assignments or other agreements as Agent may reasonably request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower, (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree binding agreement to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) it, except, that, any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaGuarantor, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: Lender:
(Ai) Agent Lender shall receive prompt have received not less than ten (10) days prior written notice of any the intention of such merger Borrower or consolidationGuarantor to so merge or consolidate and such information with respect thereto as Lender may request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (iii) Lender shall have occurred received true, correct and be continuingcomplete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (Civ) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company entity shall have immediately upon the effectiveness of the merger expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements confirm in writing pursuant to which such Borrower or Guarantor is a partyan agreement, in form and substance reasonably satisfactory to AgentLender, its continuing liability in respect of the Obligations and in the case of a merger between any Borrower or Guarantor Financing Agreements and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, (v) the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions have a Net Worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the Net Worth of each of the entities involved in such merger immediately prior to such transaction or series of transactions, and (Dvi) Agent each Guarantor shall promptly receive true, correct ratify and complete copies confirm that its guarantees of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior the Obligations shall apply to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;Obligations as assumed by such surviving entity; or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other PersonPerson except, except for,
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or any other Equipment no longer used or useful usable in the business of a Borrower so long as (A) any Borrower proceeds are paid to Lender, (B) such sales do not involve Equipment having an aggregate fair market value in excess of $5,000,000 for all such Equipment disposed of in any fiscal year of Borrowers, (C) such sales shall be on commercially reasonably prices and terms in a bona fide arm's length transaction with a person who is not an Affiliate, (D) at least eighty (80%) percent of the consideration received from any such sale is in the form of cash or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; Cash Equivalents, provided, that, any portion of such consideration evidenced by a promissory note or other instrument shall be promptly delivered to Lender, duly endorsed and assigned to Lender, (AE) the amount of the cash to be received by such Borrower pursuant to the sale or other disposition of such Equipment shall be not less than one hundred (100%) percent of the following amount (such amount as to any Equipment being referred to herein as the "minimum sales price" for such Equipment): (1) one hundred (100%) percent of the orderly liquidation value of the Equipment so sold or otherwise disposed of (based on the appraisal thereof received by Lender prior to the date hereof less (2) the amount of the reductions in the Equipment Availability from the date hereof through and including the date of the sale or other disposition of such Equipment allocable to such Equipment (as calculated by Lender), (F) the Equipment Availability shall be permanently reduced by an amount equal to the minimum sales price applicable to such Equipment so sold or otherwise disposed of, (G) after giving effect to such sale or other disposition and such reduction in the Equipment Availability, there shall be Excess Availability, (H) as to any such sale of Equipment for an amount in excess of $100,000, Lender shall have received prior written notice of such sale or other disposition, (I) on a biweekly basis, if there have been any sales of such Equipment in the immediately preceding two (2) week period, Borrowers shall furnish a report to Lender of the amount of such Equipment so sold, which report shall set forth in reasonable detail satisfactory to Lender a list and description of the Equipment sold (by model, make, manufacturer, serial no. and/or such other identifying information as may be appropriate, as determined by Lender), the parties to such sale or other disposition, the sale price and the manner of payment thereof and such other information with respect thereto as Lender may request, and (J) as of the date of any such sale or disposition and after giving effect thereto, no Default Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuingoccurred, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,or
(iii) the issuance and sale by Parent any Borrower or Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) such Borrower or Guarantor after the date hereof; , provided, that, (A) if a Cash Dominion Period exists, Agent Lender shall receive prompt have received not less than ten (10) Business Days prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and (B) if a Cash Dominion Period exists, all sale of such stock and the net cash proceeds of which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, unless otherwise permitted in Section 9.11 hereof, (C) the sale and issuance terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that limit the right of Borrowers or Guarantors to request or receive Loans or Letter of Credit Accommodations or to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of any Borrower or Guarantor with Lender or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,exist or have occurred, or
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee a stock option or grant or similar equity plan or 401(k) plans plan of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans option plan or 401(k) plans plan which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock Default and (B) Borrowers shall give Lender prior written notice of the material terms of such stock option plan and such other agreements, documents and instruments information with respect thereto as Agent Lender may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,request;
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and each Guarantor shall not, and shall not permit any of its Subsidiaries (other than Agromarau Industria E. Commercio Ltda.) to, directly or indirectly:
, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any wholly-owned domestic Subsidiary of Borrower or Guarantor may merge with or and into or consolidate with any other wholly-owned domestic Subsidiary of Borrower or Guarantor (including any Person which becomes a wholly-owned foreign Subsidiary of Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States other wholly-owned foreign Subsidiary of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.79
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except as provided in that certain Agreement and Plan of Merger dated as of March 29, 2007 among BTP Acquisition Company, LLC, IEAC, Inc. and Parent, and except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower), provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $100,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent’s option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor to a Borrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Image Entertainment Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Subsidiary of any Borrower or Guarantor may merge with or and into or consolidate with Borrowers or any other Subsidiary of any Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, otherwise); provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Borrower or such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, together with such other information with respect to such merger or consolidationconsolidation as Agent may reasonably request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (Ciii) in Agent shall have received, true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation, including, when available, the case certificate or certificates of merger to be filed with each appropriate Secretary of State or similar Governmental Authority, foreign or domestic (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (iv) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Borrowers shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, (v) in no event shall any Borrower merge with or into or consolidate with, or enter into any similar transaction with, any Foreign Subsidiary, and (Dvi) Agent shall promptly receive true, correct and complete copies in the case of all material agreements, documents and instruments relating to any such merger or consolidation; providedconsolidation to which such Borrower is a party, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company (A) such Borrower shall be merged with the surviving corporation, and (B) in no event shall such Borrower become liable for any Indebtedness or consolidate into any Borrower other obligations (contingent or Guarantor other than another Petro Companyotherwise) as a result of all such mergers or consolidations in an aggregate amount in excess of $150,000;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business;
(ii) Indebtedness permitted under Section 9.9,
(iiiii) the sale or other disposition of Equipment (including worn-worn out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantorany of Subsidiary of any Borrower) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $500,000 for all such Equipment disposed of in any fiscal year of Borrower or as Agent may otherwise agree,
(iv) the issuance and the sale by any Borrower or any of Real Property or the Subsidiary of Borrower of Capital Stock (as payment of consideration for a Permitted Acquisition or otherwise) of such Borrower or any Propcoof Subsidiary of such Borrower after the date hereof; provided, that, as to any such issuance and sale to Persons other than the Permitted Holders as of the date hereof, each of the following conditions is satisfied: (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or such Subsidiary of such Borrower, as the case may be, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the number of shares to be issued and sold, the total amount which it is anticipated will be realized from the issuance and sale of such stock, the net cash proceeds which it is anticipated will be received by such Borrower or any of Subsidiary of Borrower, as the case may be from such sale, together with such other information with respect thereto as Agent may in good faith request, (B) such Borrower or any of Subsidiary of Borrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or are more restrictive or burdensome to any Borrower than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, and other than for the issuance of Capital Stock as payment of consideration for a Permitted Acquisition, all of the proceeds of the sale and issuance of such Capital Stock shall be remitted to Agent for application to the principal amount of the Obligations and such other Obligations then due and payable, in such order and manner as Agent may determine (without any permanent reduction in the Commitments, but without limitation of any rights of Agent or Lenders at any time that a Default or Event of Default shall exist or have occurred and be continuing) and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(ivv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option option, restricted stock award or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, ; provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses licensing by any Borrower of Intellectual Property in the ordinary course owned by it to a Subsidiary of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (that is wholly-owned by it or by it and its subsidiaries other than Parentfor director qualifying shares of up to two (2%) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchiseespercent thereof; provided, that, as to any such license: (A) any rights of such Subsidiary shall be subject to the rights of Agent in such Intellectual Property (including the rights of Agent to use such Intellectual Property upon an Event of Default) under this Agreement and as a matter of law, and (B) such license shall not impair, hinder or otherwise adversely affect the rights of Agent,
(vii) the grant by any Borrower after the date hereof of a non-exclusive license or an exclusive license to any Person for the use of any Intellectual Property owned by such Borrower in the ordinary course of business consistent with the current practices of such Borrower as of the date hereof; provided, that, as to any such license, each of the following conditions is satisfied, (A) such license is only for the use of Intellectual Property for the manufacture, distribution or sale of products that Borrowers do not manufacture, distribute or sell, (B) such licenses shall be on commercially reasonable prices and terms in a bona fide arms’ length transactions, (C) in the case of a non-exclusive license, the rights of the licensee shall be subject to the rights of Agent, and in the case of any license, shall not adversely affect, limit or restrict the rights of Agent to use any Intellectual Property of a Borrower to sell or otherwise dispose of any Inventory or other Collateral, (D) Agent shall have received, true, correct and complete copies of the executed license agreement, promptly upon the execution thereof and (E) as of the date of the grant of any such salelicense, transfer or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and,
(xiiviii) the sale abandonment or other disposition cancellation of assets Intellectual Property that is not material, is no longer used or useful in any material respect in the business of any Borrower or Guarantor its Subsidiaries, and which it is not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); commercially reasonable to maintain, provided, that, (A) as such abandonment or cancellation shall not adversely affect the right or ability of Agent to exercise its rights or remedies with respect to any of the date Collateral or reduce the value of such sale or disposition the Collateral in any material respect and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition Borrowers shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as provide prior written notice to Agent of the date intention of any Borrower to abandon or cancel such sale or disposition and after giving effect thereto, Intellectual Property,
(ix) the aggregate net book value grant by Xxxxxx Parent of all a non-exclusive license of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale4-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets High Intellectual Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations Timet in accordance with Section 6.4(a) hereof,5 of the Timet Security Agreement as in effect on the Timet Closing Date; provided, that, such license is only for the use of the 4-High Intellectual Property to the extent required for the titanium conversion services provided for under the Timet Conversion Agreement and during the time that Timet is exercising its rights of access to the Timet Collateral in accordance with the terms of the Timet Security Agreement;
(c) wind up, liquidate or dissolve dissolve, except that any Guarantor Subsidiary listed on Schedule 8.12 hereto may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Subsidiary to a Borrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Haynes International Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) except as expressly permitted in Section 9.10(k), merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower), provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of $100,000 for all such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment in any fiscal year of Borrowers or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to as Agent for application to the Obligations in accordance with Section 6.4(a) hereofmay otherwise agree,
(iii) the issuance and sale by Parent any Borrower or Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) such Borrower or Guarantor after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) if a Cash Dominion Period existssuch Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) except as Agent may otherwise agree in writing, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofsuch order and manner as Agent may determine,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition dispositions of assets of any Borrower or Guarantor Inventory whose value has been written down to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property zero in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market accordance with GAAP and whose original cost value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall does not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included 250,000 in the Borrowing Base or if a Cash Dominion Period exists, aggregate for all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofdispositions during any fiscal year,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may require) and other liens expressly permitted hereunder and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower or another Guarantor, (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and each Guarantor shall not, and shall not permit any of its Subsidiaries (other than Brazil) to, directly or indirectly:
, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except that (ix) any wholly-owned domestic Subsidiary of Borrower or Guarantor may merge with or and into or consolidate with any other wholly-owned domestic Subsidiary of Borrower, and any wholly-owned Foreign Subsidiary of Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly and into or consolidate with any other wholly-owned Foreign Subsidiary of Borrower and (y) any Subsidiary formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of effectuating a Permitted Acquisition may merge or consolidate with a Person acquired pursuant to such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, Permitted Acquisition; provided, that, in each case above, each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail reasonably satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and immediately after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation then in effect or to be executed and delivered upon the case consummation thereof (in substantially final form), including, but not limited to, the certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any (vi) Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
for (i) sales of Inventory in the ordinary course of business,
, (ii) the sale or other disposition dispositions of Equipment assets (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) excluding Eligible Inventory, Eligible Accounts and the sale of Real Property or the Capital Stock of any Propco; provided, that, (ASubsidiary of Borrower) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent business so long as (A) evidence that Agent has a valid and perfected first priority security interest such sales or other dispositions do not involve assets having an aggregate Fair Market Value in and lien upon excess of $5,000,000 for all such Capital Stock and (B) such other agreements, documents and instruments assets disposed of in any Fiscal Year of Borrower or as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingagree, (B) to the extent such sale assets to be sold consist of Eligible Equipment or disposition shall Eligible Real Property, Borrower provides Agent with prior written notice identifying such assets to be on commercially reasonable terms in a bona fide arms length transactionsold, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing at the time of and Excess Availability plus Unrestricted Cash shall not be less than an amount immediately after giving effect to any such sale or disposition, (D) the consideration received is at least equal to the thirty-five Fair Market Value of such assets sold or otherwise disposed of and (35%E) percent the Net Proceeds from such sale or disposition are applied to reduce the then outstanding principal balance of the Maximum Credit.Loans; provided, that in lieu of clause -------- (E), Borrower or any Guarantor may use such Net Proceeds to reinvest in productive assets of a kind then used or usable in the business of Borrower or 74
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:
(a) merge into or with or consolidate or amalgamate with any other Person or permit any other Person to merge into or with or consolidate or amalgamate with it except that (i) it, except, that, any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaGuarantor, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) days' prior written notice of any the intention of such merger Borrower or consolidationGuarantor to so merge or consolidate and such information with respect thereto as Agent may reasonably request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (Ciii) Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions have a net worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the case net worth of a each of the entities involved in such merger between any Borrower or Guarantor consolidation immediately prior to such transaction or series of transactions (as reduced for reasonable and customary costs and expenses incurred directly in connection therewith so long as such newly formed corporation or limited liability company where such corporation or limited liability company is costs and expenses are not material), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other PersonPerson except, except for,
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, so long as (A) as of except to the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash extent constituting proceeds of such sale PAI Senior Secured Note Collateral or disposition shall promptly be PCI Senior Secured Note Collateral, any proceeds are paid to Agent (for the account of Lenders) for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent terms hereof to the extent any Obligations are then outstanding (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice Letter of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such PropcoCredit Accommodations),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms sales do not involve Equipment having an aggregate fair market value in a bona fide arms length transaction, (C) as excess of the date of US$1,000,000 for all such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or Equipment disposed of in any fiscal year of Parent shall not exceed $20,000,000Borrowers or involve Equipment that is obsolete or wornout, and (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (EC) such sale or disposition shall sales do not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if have a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,Material Adverse Effect;
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower the sale by PCAC of its interest in Sagauro Power Company or Guarantor shall assume in BMPC (or any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable water rights available in respect of any obligations or liabilities excess of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as requirements of the date Hendxxxxx, Xxvada facility of such winding upPCAC, liquidation either in conjunction with or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including separate from the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propcoits interests in Sagauro Power Company or BMPC); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.,
Appears in 1 contract
Samples: Loan and Security Agreement (Pioneer Americas Inc /Tx)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor International may merge with or and into or consolidate with Parent or any Subsidiary of Parent and any Subsidiary of Parent may merge with and into or consolidate with Parent or any other Borrower or Guarantor Subsidiary of Parent (including any Person which such Subsidiary that only becomes a Borrower Subsidiary after giving effect to such merger or Guarantor in connection with a Permitted Acquisition consolidation subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaconditions set forth herein), provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (A) Agent shall receive prompt written notice of any such merger or consolidation, (Bi) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (Cii) in Administrative Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any copy as filed promptly after such filing), (iii) if a Borrower or a Guarantor and shall be a party to such newly formed corporation merger or limited liability company where such corporation or limited liability company is consolidation, the surviving corporation entity shall be a Borrower or limited liability companya Guarantor, such corporation or limited liability company (iv) the surviving entity shall have expressly confirmedconfirm, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Administrative Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Administrative Agent may reasonably request in connection therewith, therewith and (Dv) Agent shall promptly receive true, correct and complete copies in the case of all material agreements, documents and instruments relating a merger with a Person that is not a wholly-owned Subsidiary immediately prior to such merger, such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall not be merged with or consolidate into any Borrower or Guarantor other than another Petro Companypermitted unless it is also permitted under Section 10.4(b) hereof;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person Equity Interests or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propcofor Permitted Dispositions; provided, that, (A) to the extent that any Collateral is sold as permitted by this Section 10.1(b), other than to a Borrower or Guarantor, or to the extent that Administrative Agent and Required Lenders may consent to any other sale of any assets, concurrently with, and subject to the reasonable satisfaction of the date of conditions to such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all receipt of the net cash proceeds Net Cash Proceeds related thereto), upon the written request of such sale or disposition shall promptly be paid to Borrower Agent for application to and effective upon the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all transfer of the net cash proceeds title of the sale assets sold and issuance the reasonable satisfaction of the applicable conditions to such Capital Stock shall promptly Permitted Disposition, Collateral Agent shall, at Borrowers’ expense, cause to be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor filed a UCC financing statement amendment providing for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale release by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Collateral Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,from its security interest granted hereunder; or
(c) suspend operations, wind up, liquidate or dissolve except that any Guarantor Subsidiary of Parent may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Person shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Person shall be duly and validly transferred and assigned to its shareholders, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Collateral Agent or as are otherwise permitted hereunder (and Agents shall have received such evidence thereof as Agents may reasonably require) and Agents shall have received such deeds, assignments or other agreements as Agents may reasonably request to evidence and confirm the transfer of such assets and, without limiting the foregoing, in the case of a winding up, liquidation or dissolution of a Borrower, the transfer and assignment shall be to an entity that is or becomes a Borrower or another Guarantorupon such transfer and assignment and has executed and delivered all such agreements, documents and instruments as Agents may reasonably require and as is otherwise provided for herein and Collateral Agent shall maintain and have a perfected security interests in and liens upon all such assets and properties as so transferred on the same terms and with the same priority, (iiiv) Agent Agents shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, hereunder and (vvi) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (CPG International Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower), provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $250,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease issuance of Capital Stock pursuant to the exercise of options or other disposition warrants issued and outstanding as of assets of any Borrower or Guarantor to another Borrower or Guarantorthe date hereof,
(vi) the grant issuance of non-exclusive licenses Capital Stock pursuant to the conversion of Intellectual Property in notes or other debt instruments currently issued and outstanding as of the ordinary course of businessdate hereof or contemplated to be issued and outstanding substantially contemporaneous herewith,
(vii) leases the issuance of Capital Stock to Finova Mezzanine Capital, Inc., Laurus Master Fund, Ltd., Global Capital Group, L.P. or subleases GCA Strategic Investment Fund Limited pursuant to the exercise of Real Property permitted under Section 9.8(m) warrants or 9.12 hereof,the conversion of debt issued and outstanding as of the date hereof or described herein, or
(viii) the sale or other disposition issuance of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,secondary public or private offerings of the Parent's common stock.
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor to a Borrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Universal Automotive Industries Inc /De/)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor (a) No Restricted Person shall not directly or indirectlyindirectly do any of the following:
(ai) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that for the following:
(iA) any Borrower or Guarantor US Group Member may merge with or into or consolidate with any other US Group Member or the Borrower; provided, however, that, in the case of any merger involving the Borrower, the Borrower shall be the surviving corporation;
(B) any Intermediate Holding Company (other than Holdings Bermuda or International Management) may merge into or with any other Intermediate Holding Company or the Borrower; provided, however, that, (x) in the case of any merger involving the Borrower, the Borrower shall be the surviving corporation, (y) in the case of any merger involving LIW, other than a merger of LIW into the Borrower, LIW shall be the surviving corporation and (z) in the case of a merger of Holdings Bermuda or International Management, either Holdings Bermuda or International Management shall be the surviving corporation;
(C) any UK Group Member may merge into or with any other UK Group Member; provided, however, that, in the case of any merger involving the UK Borrower, the UK Borrower shall be the surviving corporation; and
(D) any Other Restricted Person may merge into or with any other Other Restricted Person; provided, however, that in the case of any merger involving Asia Pacific, Asia Pacific shall be the surviving corporation; and provided, further, that, after giving effect to such merger, all Capital Stock of Asia Pacific shall be pledged to the Administrative Agent for the benefit of the Secured Parties;
(ii) sell, issue, assign, transfer or otherwise dispose of any Capital Stock to any Person except for sales or issuances by the Borrower of Capital Stock of the Borrower to the extent permitted pursuant to clause (vi) below and any sale, issuance, assignment, transfer or other disposition:
(A) of all of the outstanding Capital Stock of any US Group Member to any other US Group Member or the Borrower;
(B) of all of the outstanding Capital Stock of any Intermediate Holding Company (other than LIW and Holdings Bermuda) to any other Intermediate Holding Company or the Borrower;
(C) of all of the outstanding Capital Stock of any UK Group Member to any other UK Group Member or the UK Parent; provided, however, that such transaction will be permitted solely if, concurrently with the consummation thereof (but after giving effect to such transaction), the UK Security Trustee, for the benefit of the UK Secured Parties, is granted a perfected security interest on such Capital Stock to secure the UK Secured Obligations with the same priority as the pledge of such Capital Stock to secure the UK Secured Obligations entered into as of the date hereof (or as otherwise agreed by the Administrative Agent); and
(D) of all of the outstanding Capital Stock of any Other Restricted Person other than Asia/Pacific to any Other Restricted Person or Holdings Bermuda;
(iii) sell, assign, lease, transfer or otherwise dispose of any other Person or any of its assets (other than sales of Capital Stock permitted by clause (ii) above or clause (iv) below to any other Person (an “Asset Sale”) except for the following:
(A) sales of Inventory in the ordinary course of business;
(B) the disposition of worn-out or obsolete equipment or equipment no longer used in the business of such Restricted Person so long as (x) if an Event of Default exists or has occurred and is continuing, any proceeds are paid to Lender and (y) such sales do not involve equipment having an aggregate fair market value in excess of $1,000,000 for all such equipment disposed of by the Restricted Persons in any fiscal year, or $500,000 in the fiscal year in which the Maturity Date occurs;
(C) any sale, assignment, lease or other disposition by any Loan Party to any other Loan Party;
(D) any sale, assignment, lease or other disposition by any UK Group Member to any Loan Party or any other UK Group Member;
(E) any sale, assignment, lease or other disposition by any Other Restricted Person to any Other Restricted Person;
(F) any sale, assignment, lease or other disposition by any UK Group Member to any Other Restricted Person; provided, however, that (x) no Default or Event of Default is continuing or would result therefrom, (y) such Asset Sale shall be for a fair market value and other consideration therefor shall be payable in cash and (z) that after giving effect to such Asset Sale, the UK Sale and Investment Amount shall not exceed $7,500,000;
(G) any sale, assignment, lease or other disposition by any Restricted Person to any Subsidiary of the Borrower, provided, however, that (x) no Default or Event of Default is continuing or would result therefrom, (y) such Asset Sale shall be for fair market value and other consideration therefor shall be payable in cash and (z) that after giving effect to such Asset Sale, the Restricted Persons Sale and investment Amount shall not exceed $7,500,000;
(H) any sale, assignment or other transfer by any Other Restricted Person to any counterparty (other than to the Borrower or Guarantor to any Subsidiary of the Borrower) to any factoring arrangement in connection with any financing made in reliance on Section 6.8(i) (including Indebtedness);
(I) any Permitted Sale not otherwise permitted under this clause (iii); and
(J) any sale or disposition by any Restricted Person permitted pursuant to the US Senior Credit Agreement (or permitted pursuant to a valid waiver or consent if the sale or disposition is otherwise prohibited by the US Senior Credit Agreement) but otherwise not permitted under this Agreement; provided, however, that the aggregate fair market value of such sales or dispositions made in reliance on this clause (J) shall not exceed $5,000,000.
(iv) acquire (A) the Capital Stock of any Person in a transaction in which becomes such Person would become a Borrower Subsidiary of such Restricted Person or Guarantor (B) substantially all of the assets of any Person (except, in each case of clauses (A) and (B) hereof, from a Restricted Person pursuant to a transaction permitted in clause (i), (ii) or (iii) above or in connection with the formation of a Permitted Subsidiary);
(v) wind up, liquidate or dissolve except in connection with a Permitted Acquisition subject Liquidation;
(vi) issue or permit to remain outstanding any Capital Stock other than (A) common stock (and, in the case of the Borrower, options and warrants to purchase common stock), (B) in the case of any Subsidiary of the Borrower, preferred stock issued to a Restricted Person (to the terms of Section 9.21(d) hereof) extent the investment by such Restricted Person in such preferred stock is otherwise permitted hereunder), and (iiC) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States case of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower, Permitted Holder Stock; provided, thathowever, in each case that each of the following conditions is satisfied as determined by Agent in good faiththe Administrative Agent: (A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (C) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii1) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Administrative Agent shall have received true, correct and complete copies of all material agreements, documents and instruments evidencing or otherwise related to such sale-leasebackPermitted Holder Stock; (2) such Permitted Holder Stock shall be and remain on terms and conditions satisfactory (including subordination terms) to each Agent and the Borrower shall not, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propcoindirectly, redeem, retire, defease, purchase or otherwise acquire such Permitted Holder Stock or set aside or otherwise deposit or invest any sums for such purpose; and (3) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback Borrower shall promptly be paid to Agent for application furnish to the Obligations Administrative Agent all notices or demands in accordance connection with Section 6.4(a) hereofsuch Permitted Holder Stock either received by the Borrower or on its behalf promptly after the receipt thereof, (v) or sent by such sale-leaseback transaction shall be the Borrower or on commercially reasonable terms in a bona fide arms-length transactionits behalf concurrently with the sending thereof, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000case may be; andor
(evii) agree to do any of the foregoing. Notwithstanding anything .
(b) The Borrower shall not permit any of its Unrestricted Subsidiaries to the contrary contained in this Agreementsell, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sellassign, lease, transfer, assign, license, abandon transfer or otherwise dispose any of any Capital Stock, Indebtedness or other its assets to a Petro Company unless, as out of the date ordinary course of business except for:
(i) financing transactions including secured financings and factoring arrangements, entered into by any such sale, lease, transfer, assignment, license, abandonment Unrestricted Subsidiary;
(ii) transactions solely between or disposition, no Default or Event of Default shall have occurred among the Borrower and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent any Subsidiary of the Maximum Credit.Borrower or solely between or among two or more Subsidiaries of the Borrower (including, in each case, capital contributions, dividends and other distributions, loans, mergers, consolidations, liquidations, and dissolutions); and
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each No Borrower and Guarantor shall not shall, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except that so long as no Event of Default exists or would result therefrom:
(i) any Borrower may merge into any other Borrower;
(ii) any Guarantor may merge into any Borrower or any other Guarantor; and
(iii) any Borrower or Guarantor may merge with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (C) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which provided that such Borrower or Guarantor is a partythe surviving entity, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock stock or Indebtedness indebtedness to any other Person or any of its assets to any other Person, except forfor so long as no Event of Default exists or would result therefrom:
(i) sales of Inventory in the ordinary course of business,;
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or disposition of Equipment no longer used or useful in economically operational to the business of any Borrower or Guarantor) and Borrowers so long as the sale of Real Property or the Capital Stock of any Propco; provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property proceeds thereof are delivered to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Collateral Agent for application to the Obligations in accordance with Section 6.4(a) hereof,Obligations;
(iii) the issuance sale or disposition of Borrowers' Real Property located in Trenton, Tennessee or Hamixxxx, Xxrth Carolina, and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after any Equipment located on such Real Property that was not included in the date hereof; providedAccuval appraisal dated June 18, that1999, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of so long as the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid thereof are delivered to Collateral Agent for application to the Obligations in accordance with Section 6.4(a) hereof,Obligations;
(iv) the issuance sales of Capital Stock of any Borrower or Guarantor consisting of common stock Accounts to a Factor pursuant to an employee stock option or grant or similar equity plan or 401(k) plans a Factoring Agreement so long as each of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, andFactor Eligibility Conditions is satisfied;
(v) the sale, transfer, lease, sublease or other disposition transfers of assets of any Borrower or Guarantor Properties among Borrowers and Guarantors upon fifteen (15) days prior written notice to another Borrower or Guarantor,Agents;
(vi) the grant of non-exclusive licenses of Intellectual Permitted Property in the ordinary course of business,Transfers;
(vii) leases or subleases of Real Property transfers permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantoron Schedule 9.7 attached hereto; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,or
(c) except for the Subsidiaries listed on Schedule 9.7 attached hereto, form or acquire any Subsidiaries, or
(d) wind up, liquidate or dissolve (except that any Guarantor a Borrower may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective dissolve provided that upon such winding up, liquidation dissolution one or dissolution, more remaining Borrowers succeed to all of the such dissolving Borrower's assets and properties assumes all of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another GuarantorBorrower's obligations hereunder), (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; andor
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (other than any Borrower, and including any Person which such Subsidiary that only becomes a Borrower Subsidiary after giving effect to such merger or Guarantor in connection with a Permitted Acquisition consolidation subject to the terms of Section 9.21(d) hereofconditions set forth herein) and (ii) any Borrower or Guarantor may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Borrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithAgent: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, therewith and (Dvi) Agent shall promptly receive true, correct and complete copies in the case of all material agreements, documents and instruments relating a merger with a Person that is not a wholly-owned Subsidiary immediately prior to such merger, such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall not be merged with or consolidate into any Borrower or Guarantor other than another Petro Companypermitted unless it is also permitted under Section 9.10(e) below;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of businessPermitted Dispositions,
(ii) the sale or other disposition by Borrowers of Equipment Securitization Assets pursuant to a Permitted Securitization Facility in accordance with the terms of the Securitization Facility Documents which sale shall be free and clear of the security interest and lien of Agent in such Securitization Assets so sold prior to the Automatic Release Termination (including worn-out or obsolete Equipment or Equipment no longer used or useful as defined in the business of any Borrower or GuarantorSecuritization Intercreditor Agreement) and otherwise subject to the terms of the Securitization Intercreditor Agreement;
(iii) the issuance and sale by any Borrower, Guarantor or Restricted Subsidiary of Real Property or the Capital Stock of any Propcosuch Borrower, Guarantor or Subsidiary after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower, Guarantor or Subsidiary, which notice shall specify whether such shares are to be sold pursuant to a public offering or if not a public offering, then the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower, Guarantor or Subsidiary shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, at any time a Cash Dominion Event has occurred, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in accordance with the terms hereof and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iv) the issuance of Capital Stock of any Borrower Borrower, Guarantor or Guarantor Subsidiary consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor or Subsidiary of Parent (other than a Borrower) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor or other Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor or other Subsidiary shall be duly and validly transferred and assigned to its shareholders, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower or another GuarantorBorrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor or Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any of its Subsidiaries to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that it, except, THAT,
(i) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including organized under the laws of any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms State of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, providedPROVIDED, thatTHAT, in each case each of the following conditions is satisfied as determined by Agent in good faithLender: (A) Agent Lender shall receive prompt have received not less than thirty (30) days prior written notice of any the intention of Borrower and such merger Guarantor to so merge or consolidationconsolidate and such information with respect thereto as Lender may request, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (C) Lender shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the certificate or certificates of merger or consolidation to be filed with each appropriate Secretary of State or other Governmental Authority (and promptly after such merger or consolidation is effective, as such certificate or certificates of merger or consolidation have been filed with each appropriate Secretary of State or other Governmental Authority), (D) the surviving entity of such consolidation or merger shall be Borrower, (E) Borrower shall, immediately before and immediately after giving effect to such transaction or series of transactions have a tangible net worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the case tangible net worth it had immediately prior to such transaction or series of a transactions, and (F) Borrower shall not become obligated with respect to any Indebtedness, nor any of its property become subject to any lien, pursuant to such merger between or consolidation unless Borrower could incur such Indebtedness or create such lien hereunder or under the other Financing Agreements;
(ii) any Borrower Guarantor may merge with and into or consolidate with any other Guarantor organized under the laws of any State of the United States of America, PROVIDED, THAT, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than thirty (30) days prior written notice of the intention of such Guarantors to so merge or consolidate and such newly formed corporation information with respect thereto as Lender may request, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (C) Lender shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited liability company where to, the certificate or certificates of merger or consolidation to be filed with each appropriate Secretary of State or other Governmental Authority (and promptly after such corporation merger or limited liability company consolidation is effective, as such certificate or certificates of merger or consolidation have been filed with each appropriate Secretary of State or other Governmental Authority), and (D) the surviving corporation entity shall immediately upon the effectiveness of the merger or limited consolidation expressly confirm in writing pursuant to an agreement, in form and substance satisfactory to Lender, its continuing liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed in respect of the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower it and the Guarantor with which it has merged or Guarantor consolidated is or were a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in so long as (A) the business aggregate amount of any Borrower or Guarantor) and the sale proceeds of Real Property or the Capital Stock of any Propco; provided, thatall such sales shall not exceed US$500,000, (AB) such sales shall be at and on commercially reasonable prices and terms in BONA FIDE arm's length transactions with persons who are not Affiliates of Borrower, (C) the proceeds from such sales shall be remitted directly to First Union National Bank, to the extent that the Indebtedness evidenced by the Term Loan Note has not been paid in full, but otherwise directly to Lender and shall be applied to the Obligations in such order and manner as Lender shall determine or at any time on or after the occurrence of an Event of Default (without limiting the rights of Lender with respect thereto), at the option of Lender, held as cash collateral for the Obligations and (D) as of the date of any such sale or disposition and after giving effect thereto, no Default Event of Default, or act, condition or event which with notice or passage of time would constitute an Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transactionprovided, (C) that, so long as each of the date conditions set forth in clauses (A) through (E) above (inclusive) are satisfied as determined by Lender, as to each such sale, Lender shall upon the written request of Borrower, at the expense of Borrower, execute and deliver to Borrower such partial releases, in form and substance satisfactory to Lender, to evidence the release of any such assets so sold by Borrower from the security interests granted by Borrower to Lender under this Agreement, such release to only be effective upon the consummation of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, the satisfaction of each of the conditions set forth in clauses (DA) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), through (E) if the Equipment or Real Property to be sold or disposed of above (including the Equipment or Real Property owned by any Propcoinclusive) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofrespect thereto,
(iii) the issuance and sale by Parent Borrower of Capital Stock of Parent (other than Disqualified Capital Stock) Borrower after the date hereof; providedPROVIDED, thatTHAT, (A) if a Cash Dominion Period exists, Agent Lender shall receive prompt have received not less than ten (10) Business Days prior written notice of such issuance and sale by Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and (B) if a Cash Dominion Period exists, all sale of such stock and the net cash proceeds of which it is anticipated will be received by Borrower from such sale, (B) Borrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, (C) the sale and issuance terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or the right of Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower with Lender or are more restrictive or burdensome to Borrower than the terms of any Capital Stock in effect on the date hereof, and (D) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall promptly be paid to Agent for application to the Obligations exist or have occurred; and except that Borrower may issue Capital Stock in accordance with Section 6.4(a) hereof,
(iv) the issuance terms of Capital Borrower's Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for Option Plans and Employee Stock Purchase Plans, each as in effect on the benefit of its employees, directors and consultants, date hereof provided, thatTHAT, (1) in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans option plan which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock Default and (B2) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other agreements, documents and instruments information with respect thereto as Agent Lender may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchiseesrequest; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,or
(c) form or acquire any Subsidiaries other than those listed on the Information Certificate;
(d) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; andor
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Quad Systems Corp /De/)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor No Loan Party shall, or shall not permit any of its Subsidiaries to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower (other than Parent) or Guarantor Obligor may merge with or and into or consolidate with any other Borrower (other than Parent) or Guarantor Obligor, (including ii) the European Borrowers, Canadian Borrowers, Approved Foreign Borrowers or Foreign Obligors, as the case may be, may merge with and into or consolidate with each other but only to the extent the Persons party to such merger or consolidation are organized in the same country, (iii) any Person which becomes a Subsidiary of Parent (other than any Borrower or Guarantor in connection Foreign Borrower) may merge with a Permitted Acquisition subject to the terms and into or consolidate with any other Subsidiary of Section 9.21(d) hereofParent (other than any Borrower of Foreign Borrower) and (iiiv) any Borrower or Guarantor may merge with a newly Subsidiary formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of effectuating a Permitted Acquisition may merge or consolidate with a Person acquired pursuant to such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaPermitted Acquisition, provided, that, in each case above, each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Persons to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the Persons that are merging or consolidating, which Person will be the surviving entity, the locations of the assets of the Persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingexist, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Governmental Authority (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyentity shall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower (or Guarantor Foreign Obligations, as applicable) and the Financing Agreements (or Foreign Financing Agreements, as applicable) to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case each Loan Party shall, and shall cause each of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability companyits Subsidiaries to, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) therewith to ensure that the appropriate Collateral Agent shall promptly receive true, correct and complete copies maintains a perfected security interest in all the assets of all material agreements, documents and instruments relating the surviving entity to the extent any Collateral Agent had a lien on the assets of any entity party to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) issue, sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except foras permitted by each of clauses (i) through (vii) below which shall in each case be subject to the terms and conditions of clause (viii) below:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out out, obsolete or obsolete excess Equipment or Equipment no longer used or useful in the business of any Borrower Loan Party or Guarantorany Subsidiary of any Loan Party) and the sale or any portion of Real Property to a non-Affiliate of such Loan Party or Subsidiary (A) up to $500,000 in net book value in the Capital Stock aggregate for all Equipment and Real Property or (B) in excess of the amount described in clause (A); provided, that, with respect to any sale or disposition under this clause (B), (1) no Event of Default shall exist at the time of, or after giving effect to, such sale or disposition, (2) Agent shall have received not less than ten (10) Business Days' prior written notice of the intention of such disposition setting forth the parties involved, the Equipment or portion of Real Property to be sold and the purchase price thereof, (3) during the existence of a Trigger Event pursuant to clause (b) of the definition thereof, the net proceeds from such sale or disposition shall be immediately applied to repay the outstanding Advances and/or Foreign Advances, as applicable and (4) the net book value for all such Equipment and Real Property disposed of in any fiscal year of Parent does not exceed $5,000,000;
(iii) except as otherwise permitted in Section 9.7(b)(i), the sale, assignment, lease, transfer or disposal of any Propcoassets by any Borrower to another Borrower, by any European Borrower to another European Borrower by any Canadian Borrower to another Canadian Borrower or by an Approved Foreign Borrower to another Approved Foreign Borrower to the extent organized in the same country; provided, that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of the intention of such disposition setting forth the parties involved, the assets involved, and providing all other information, documents and agreements as Agent shall request in good faith, (B) no Event of Default shall exist at the time of or after giving effect to such disposition and (C) the applicable Person acquiring the assets shall have taken all actions and executed all documents deemed necessary or appropriate by Agent to maintain the applicable Collateral Agent's perfected lien on such assets;
(iv) except as otherwise permitted in Section 9.7(b)(i), the sale, assignment, lease, transfer or disposal of any assets by (A) any Subsidiary of Parent (other than any Borrower or Foreign Borrower) to any Loan Party or any Subsidiary of any Loan Party so long as any purchase or lease price to any Loan Party associated with such transaction does not exceed the net book value of such assets and (B) any Borrower or Foreign Borrower to any Subsidiary of Parent (other than any Borrower or Foreign Borrower); provided, that, for purposes of this clause (B), (1) Agent shall have received not less than ten (10) Business Days' prior written notice of the intention to engage in such transaction setting forth the parties involved, the assets involved and providing all other information, documents and agreements as Agent shall request in good faith, (2) at the time of, and after giving effect to such disposition, no Trigger Event shall exist, (3) to the extent such disposition involves assets included in the Borrowing Base (or any Foreign Borrowing Base), Parent shall have delivered to the Agent, prior to such transaction, a new Borrowing Base Certificate (or equivalent in respect of such Foreign Borrowing Base) giving effect to such transaction, (4) the net book value for all assets sold, leased or otherwise disposed of in connection with this clause (iv) in any fiscal year of Parent does not exceed $5,000,000, (5) to the extent any Borrower or Foreign Borrower receives proceeds from such disposition, such proceeds shall be immediately applied to repay the outstanding Advances or Foreign Advances, as applicable and (6) to the extent the applicable Person acquiring the assets has previously granted a Collateral Agent a lien on its assets, such Person all have taken all actions and executed all documents deemed necessary or appropriate by Agent to grant such Collateral Agent a perfected lien on such acquired assets.
(v) the issuance and sale by any Loan Party or any Subsidiary of any Loan Party of Capital Stock of such Person after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Person, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Person from such sale, (B) such Person shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any such Person to request or receive Loans or Letter of Credit Accommodations or the right of any such Person to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or Foreign Financing Agreements or otherwise in any way relate to or affect the arrangements of such Person with any Agent Party or are more restrictive or burdensome to any Loan Party or any Subsidiary of any Loan Party than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations and Foreign Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and Foreign Obligations, (E) such Capital Stock is pledged to the applicable Collateral Agent if required under the terms of any Financing Agreements or Foreign Financing Agreements and (F) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, exist;
(Bvi) such the sale or other disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as by Parent or any Subsidiary of Parent of the date Capital Stock in any Subsidiary owned by such Person or all or substantially all the assets of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereofPerson; provided, that, (A) if Parent has delivered a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid certificate to Agent for application to the Obligations in accordance with Section 6.4(aat least ten (10) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant Business Days prior to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of identifying the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by or assets subject to such Propco),
(xi) the salesale or disposition, transfer or other disposition by the Petro Companies to an Excluded Subsidiary setting forth a good faith estimate of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of expected net proceeds from such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and attaching thereto the applicable buy/sell documents to be continuing, (B) such sale or disposition shall be on commercially reasonable terms executed in a bona fide arms length transaction, (C) as of the date of connection with such sale or disposition and a new Borrowing Base Certificate (or equivalent in respect of any Foreign Borrowing Base) giving effect to such sale; (B) no Trigger Event exists at the time of, or after giving effect theretoto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000disposition, (EC) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid immediately applied to repay the outstanding Advances or Foreign Advances, as applicable, and (D) the aggregate fair market value for (x) all such Capital Stock or assets sold with respect to Kraftube, Inc. and Tractech, Inc. does not exceed $35,000,000 in the aggregate for both such Persons and (y) any other Capital Stock or assets sold in any fiscal year of Parent does not exceed $5,000,000. Notwithstanding the foregoing, the liens on the assets to be sold shall not be deemed released and no Collateral Agent for application shall have any obligation to the Obligations release such liens in connection with any such sale or disposition until Agent receives satisfactory evidence (including copies of executed buy/sell documents) that (1) such sale or disposition was consummated in accordance with Section 6.4(a) hereof,
(c) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned buy/sell documents previously provided to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v2) as of the date of applicable Collateral Agent received net proceeds from such winding up, liquidation sale or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingdisposition in the amount contemplated by such buy/sell agreements;
(dvii) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock (A) Receivables of any Propco and the leaseback of Real Property and Equipment owned by such Propco)AutoZone, Inc. or other account debtors acceptable to Agent pursuant to a Purchase Commitment; provided, that, the terms and conditions of such Purchase Commitment have been approved by Agent and (B) Receivables of Delco Remy UK Limited pursuant to that certain Invoice Discounting Facility dated as of June 14, 2000 between Delco Remy UK Limited and Barclays Bank PLC; and
(viii) notwithstanding anything in this Agreement to the contrary, to the extent that the Parent or any "Restricted Subsidiary" (as defined in the Indentures) intends on receiving "Net Available Cash" (as defined in the Indentures) from any "Asset Disposition" (as defined in the Indentures) permitted under the terms of this Agreement, then (A) the Parent shall provide Agent with ten (10) Business Days' prior written notice of such Asset Disposition setting forth a description of the assets being sold, the parties involved, the date of such Asset Disposition and the Net Available Cash to be received in connection with such Asset Disposition, (B) Parent shall, and shall cause each of its applicable Subsidiaries to, apply all such Net Available Cash to repay the following conditions is satisfied: Advances upon the receipt of such Net Available Cash, (iC) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in establish a Reserve against the Borrowing Base in an amount equal to such Net Available Cash, which Reserve shall be released upon the earlier of (1) the date which is the day after the period (herein, the "Investment Period") for which Parent or if a any such Restricted Subsidiary may invest an amount equal to such Net Available Cash Dominion Period exists, all in "Additional Assets" (as defined in the Indentures) pursuant to Section 4.06 of the net cash proceeds Indentures or (2) receipt by Agent prior to the end of the Investment Period of a certificate from Parent stating that Parent or the applicable Restricted Subsidiary invested in an amount equal to such Net Available Cash in Additional Assets within the Investment Period and setting forth in reasonable detail such investment, (D) to the extent Agent does not receive such a certificate within the Investment Period, the Maximum Credit shall be automatically and permanently reduced at the end of such sale-leaseback shall promptly be paid to Agent for application to Investment Period by the Obligations amount of such Net Available Cash in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, 2.4 hereof and (viE) as the Loan Parties shall pay to the Agent, for the ratable benefit of the Lenders based on their Commitment Percentages, an early termination fee in the amount equal to (1) 1.0% of such Net Available Cash if received on or prior to the first anniversary of the date hereof or (2) 0.5% of such sale-leaseback transaction and Net Available Cash if received after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any the first anniversary of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower date hereof but on or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as second anniversary of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.hereof,
Appears in 1 contract
Samples: Loan and Security Agreement (Delco Remy International Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any Domestic Subsidiary (iother than a Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor Domestic Subsidiary of Parent (including any Person which becomes other than a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereofBorrower) and (ii) any Borrower or Guarantor Foreign Subsidiary may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, other Foreign Subsidiary; provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithAgent: (A) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (B) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (CD) Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the certificate or certificates of merger to be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), and (E) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company Domestic Subsidiary, to the extent it is a Guarantor, the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;,
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $4,000,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree,
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent’s option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iiiiv) the issuance and sale by Parent any Borrower or Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) such Borrower or Guarantor after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor (but not of the conversion of any Convertible Notes pursuant to and in accordance with any Convertible Note Indenture as in effect on the date hereof), which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, if as of the date of such issuance and sale or after giving effect thereto, a Cash Dominion Period existsEvent has occurred, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofsuch order and manner as Agent may determine,
(ivv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, ; provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant issuance of non-exclusive licenses authorized but unissued treasury shares of Intellectual Property Capital Stock of Parent in the ordinary course favor of businessemployees of Borrowers and Guarantors having an aggregate value for all such treasury shares of Capital Stock so issued in any fiscal year of Borrowers and Guarantors not to exceed $500,000, in lieu of cash compensation otherwise payable to such employees,
(vii) leases or subleases the sale by Parent for cash and in an arm’s-length transaction of its right, title and interest in and to its fee simple interest in the improved Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value known as “#2 Plant” located in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or GuarantorXxxxx, Pennsylvania; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that the Net Cash Proceeds in respect of the sale of such Real Property shall be remitted to Agent has a valid upon the consummation of such sale for application by Agent to the Obligations pursuant to and perfected first priority security interest in and lien upon all such Capital Stock accordance with the terms of this Agreement and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of on the date of such sale, transfer or disposition sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,.
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any JLM Domestic Subsidiary (other than Terminals and JLM Realty, Inc.) or Chem Canada to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) it, EXCEPT, THAT, any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother than International), providedPROVIDED, thatTHAT, in each case each of the following conditions is satisfied as determined by Agent in good faithLender: (Ai) Agent Lender shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such merger Borrower or consolidationGuarantor to so merge or consolidate and such information with respect thereto as Lender may reasonably request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (iii) Lender shall have occurred received, true, correct and be continuingcomplete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (Civ) the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions have a net worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the net worth of each of the entities involved in such merger immediately prior to such transaction or series of transactions, (v) in the case of a the merger between of any Borrower, such Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is as the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to AgentLender, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, and (Dvi) Agent each Borrower and Guarantor shall promptly receive trueratify and confirm that its guarantees of the Obligations (and in the case of Borrowers, correct its joint and complete copies several liability, the guarantees of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior the Obligations of the other Borrowers) shall apply to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;Obligations as assumed by such surviving entity; or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other PersonPerson EXCEPT, except forFOR,
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, so long as (A) any proceeds are paid to Lender for application to the Obligations and (B) as of the date of such sale or disposition and after giving effect thereto, no Default Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; providedPROVIDED, thatTHAT, (A) if a Cash Dominion Period exists, Agent Lender shall receive prompt have received not less than ten (10) Business Days' prior written notice of such issuance and sale by Parent, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and (B) if a Cash Dominion Period exists, all sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Parent, as the case may be, from such sale, (B) Parent shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrowers to request or receive Loans or Letter of Credit Accommodations or the right of Borrowers to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers with Lender or are more restrictive or burdensome to Borrowers than the terms of any Capital Stock in effect on the date hereof, (D) any proceeds payable to Parent in connection with the issuance and sale of such Capital Stock shall promptly be paid to Agent Lender for application to the Obligations in accordance Obligations, and (E) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or act, condition or event which with Section 6.4(a) hereof,notice or passage of time or both would constitute an Event of Default shall exist or have occurred; and
(iv) the issuance of (A) Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee a stock option or grant or similar equity plan or 401(k) plans plan of such Borrower or Guarantor for the benefit of its employees, directors and consultants, providedand (B) warrants (issued as of the date hereof) to purchase up to 955,109 shares, thatin the aggregate of Capital Stock of the Parent and warrants, after the date hereof to purchase up to an aggregate of 1,000,000 shares of Capital Stock of the Parent, PROVIDED, THAT, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans any of the foregoing agreements which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(c) form or acquire any Subsidiaries other than those listed on the Information Certificates;
(d) wind up, liquidate or dissolve except that any Guarantor may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.or
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) it; except, that, any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which such Borrower or Guarantor that only becomes a Borrower or Guarantor in connection with a Permitted Acquisition after giving effect to such merger or consolidation subject to the terms of Section 9.21(dconditions set forth herein) hereofso long as (i) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (Cii) Administrative Borrower shall give Agent at least ten (10) Business Days prior notice thereof, which notice shall set forth in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance detail reasonably satisfactory to Agent, and in the case persons that are merging or consolidating, which person will be the surviving entity, the locations of a merger between any Borrower the assets of the persons that are merging or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewithconsolidating, and (D) Agent shall promptly receive true, correct the material agreements and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further(iii) if a Borrower is a party to such merger or consolidation with a Guarantor, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company that Borrower shall be merged with or consolidate into any the surviving entity, (iv) no Borrower or Guarantor other shall merge or consolidate with a Borrower or Guarantor that exists under the laws of a country different than another Petro Companythe country in which such Loan Party exists and (v) prior to such merger or consolidation Borrowers and Guarantors have taken (or caused to be taken) all steps required by Agent in good faith and in exercise of reasonable (from the perspective of an asset based secured lender) business judgment with respect thereto (including without limitation all steps required by Agent to maintain Agent’s liens on the Collateral granted by Borrowers and Guarantors, as well as the priority and effectiveness of such liens);
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock Equity Interests or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor); provided, that, Administrative Borrower shall provide Agent with five (5) and Business Days’ prior written notice of the sale or other disposition of Real Property Equipment having an aggregate fair market value in excess of, individually or cumulatively with other Equipment, $300,000,
(iii) the Capital Stock issuance and sale by any Borrower or Guarantor of Equity Interests of such Borrower or Guarantor after the date hereof (other than any PropcoSpecified Issuance); provided, that, (A) Agent shall have received not less than five (5) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such Equity Interests are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such Equity Interests and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) except as Agent may otherwise agree in writing, such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Equity Interests or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Equity Interests, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Equity Interests in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Equity Interests shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred occurred,
(iv) any of the Specified Issuances; provided, that, (A) Administrative Borrower shall have provided, and be continuingAgent shall have received, written notice at least thirty (30) days after any such Specified Issuance by such Borrower or Guarantor, which notice shall specify the parties to whom such Equity Interests were sold, the terms of such sale, the total amount realized from the issuance and sale of such Equity Interests and the net cash proceeds received by such Borrower or Guarantor from such sale, (B) except as Agent may otherwise agree in writing, such sale Borrower or disposition Guarantor shall not be on commercially reasonable terms required to pay any cash dividends or repurchase or redeem such Equity Interests or make any other payments in a bona fide arms length transactionrespect thereof, except as otherwise permitted in Section 9.11 hereof, (C) as the terms of such Equity Interests, and the terms and conditions of the date of such purchase and sale or disposition and after giving effect theretothereof, Excess Availability plus Unrestricted Cash shall not be less include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than $20,000,000the terms of any Equity Interests in effect on the date hereof, (D) such sale or disposition shall not be except as Agent may otherwise agree in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period existswriting, all of the net cash proceeds of the sale and issuance of such sale or disposition Equity Interests shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(asuch order and manner as Agent may determine and (E) hereofafter giving effect thereto, no Change of Control or other Event of Default shall exist or have occurred,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(ivv) the issuance of Capital Stock Equity Interests of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, ; provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock Equity Interests pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) sales of Customer 2 Accounts only by Borrowers to Customer 2 Factoring Agent in accordance with the grant terms and conditions of non-exclusive licenses of Intellectual Property the Customer 2 Factoring Agent Discount Documents (as in effect on the ordinary course of business,
date hereof) so long as the following terms and conditions are satisfied as determined by Agent: (vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viiiA) the sale or other disposition transfer of Cash Equivalents for fair market value in the ordinary course Customer 2 Accounts to Customer 2 Factoring Agent shall be without any recourse, offset or claim of business,
any kind or nature to or against Borrowers, Obligors or Agent, (ixB) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent: (1) a true, correct and complete copy of any Customer 2 Factoring Agent Discount Document, duly authorized, executed and delivered by Customer 2 Factoring Agent and Borrowers, (A2) evidence the Customer 2 Factoring Agent Intercreditor Agreement, duly authorized, executed and delivered by Customer 2 Factoring Agent and Borrowers, and (3) evidence, in form and substance satisfactory to Agent, that Agent has a valid and perfected first priority security interest access at all times (other than during network outages that may occur in and lien upon all such Capital Stock and the ordinary course) to the Customer 2 Factoring Agent System for the purposes of, among other things, reviewing the details of any Customer 2 Accounts that have been purchased by Customer 2 Factoring Agent, (BC) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale further sales of the Capital Stock Customer 2 Accounts will cease upon a written notice by Agent to Administrative Borrower of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no a Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000Default, (D) as Borrowers shall not, directly or indirectly, amend, modify, alter or change any terms of the date of such sale or disposition Customer 2 Factoring Agent Discount Documents and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale Borrowers shall furnish to Agent all notices or disposition shall not be demands (if any) in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application arrangements made pursuant to the Obligations in accordance Customer 2 Factoring Agent Discount Documents either received by Borrowers or any other Obligor or on its or their behalf, promptly after receipt thereof, or sent by Borrowers or any other Obligor or its or their affiliates or on its or their behalf, concurrently with Section 6.4(a) hereof,the sending thereof, as the case may be; and
(c) wind up, liquidate or dissolve except that dissolve; except, that, any Guarantor may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another a Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower, (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than five (5) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Lighting Science Group Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) it, except, that, any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaGuarantor, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithLender: (Ai) Agent Lender shall receive prompt have received not less than five (5) days' prior written notice of the consummation of any such merger or consolidationconsolidation of such Borrower or Guarantor to so merge or consolidate and such information with respect thereto as Lender may reasonably request, (Bii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (iii) Lender shall have occurred received, true, correct and be continuingcomplete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (Civ) in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation entity shall, immediately before and immediately after giving effect to such transaction or limited liability companyseries of transactions have a net worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such corporation transaction or limited liability company shall have expressly confirmed, ratified and assumed series of transactions) equal to or greater than the Obligations net worth of such Borrower or Guarantor involved in such merger immediately prior to such transaction or series of transactions, (v) the surviving entity shall expressly confirm, ratify and assume the Obligations and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to AgentLender, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent Lender may reasonably request in connection therewith, (vi) the surviving entity of a merger between a Borrower and Guarantor shall be a Borrower, and (Dvii) Agent each Borrower and Guarantor shall promptly receive trueratify and confirm that its guarantees of the Obligations (and in the case of Borrowers, correct its joint and complete copies several liability, the guarantees of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior the Obligations of the other Borrowers) shall apply to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;Obligations as assumed by such surviving entity; or
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other PersonPerson except, except for,
(i) sales of Inventory and rendition of services in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, so long as (A) as of the date of such sale or disposition and after giving effect thereto, no Default Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred occurred, and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations permitted in accordance with Section 6.4(a9.21 hereof, subject to the satisfaction of all of the condition set forth in clause (A) hereofabove, and the conditions set forth in such Section,
(iii) the issuance and sale by Parent Pep Boys of its Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Pep Boys shall not be required to pay any cash dividends or repurchase or redeem its Capital Stock or make any other payments in respect thereof, except to the extent such dividends, or repurchases or redemptions are otherwise permitted under Section 9.11 hereof, (B) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrowers to request or receive Loans or Letter of Credit Accommodations or the right of Borrowers to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers with Lender or are more restrictive or burdensome to Borrowers than the terms of any Capital Stock of Pep Boys in effect on the date hereof, (C) so long as any Cash Dominion Period existsEvent has occurred and is continuing, Agent any proceeds payable to Pep Boys in connection with the issuance and sale of its Capital Stock shall receive prompt written notice be paid to Lender for application to the Obligations, and (D) as of the date of such issuance and sale and (B) if a Cash Dominion Period existsafter giving effect thereto, all no Event of the net cash proceeds Default or act, condition or event which with notice or passage of the sale time or both would constitute an Event of Default shall exist or have occurred and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,continuing;
(iv) in addition to the issuance of Capital Stock permitted in Section 9.7 (b)(iii) above, the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee a stock option or grant or similar equity plan or 401(k) plans plan of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans option plan or 401(k) plans plan which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(c) wind up, liquidate or dissolve except that any Subsidiary of a Borrower or Guarantor (other than a Borrower) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any material indenture, mortgage, deed of trust, or other agreement or instrument to which any Borrower, Guarantor or such Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary shall be duly and validly transferred and assigned to a Borrower, Guarantor (or in the case of a Subsidiary which is not a Borrower or another Guarantor, to another Subsidiary which is not a Borrower or Guarantor) free and clear of any liens, restrictions or encumbrances other than the security interests and liens of Lender or other security interests, liens, restrictions or encumbrances expressly permitted hereunder (ii) Agent and Lender shall have received such evidence thereof as Lender may require), (iv) Lender shall have received copies of all documents and agreements that any Borrower or Guarantor has of such Subsidiary to be filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that Person which is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunderhereunder or such obligations or liabilities are not prohibited under this Agreement or any of the other Financing Agreements, (ivvi) Agent Lender shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such winding Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, (vii) Lender shall have received copies of such deeds, assignments or other agreements as Lender may reasonably request to evidence and confirm the transfer of such assets from the Subsidiary which is liquidating to a Borrower, and (vviii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default act, condition or event which, with notice or passage of time or both, would constitute an Event of Default, or Event of Default shall exist or have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything foregoing (unless such agreement has been consented to in writing by Lender or includes as a condition to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose effectiveness of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and agreement that Lender's consent thereto be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Creditobtained).
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (other than any Borrower, and including any Person which such Subsidiary that only becomes a Borrower Subsidiary after giving effect to such merger or Guarantor in connection with a Permitted Acquisition consolidation subject to the terms of Section 9.21(d) hereofconditions set forth herein) and (ii) any Borrower or Guarantor may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Borrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithAgent: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor copy as filed promptly after such filing), and such newly formed corporation or limited liability company where such corporation or limited liability company is (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any PropcoPermitted Dispositions; provided, that, (A) such Borrower or Guarantor shall follow a process in which (x) in the case of Real Property, it consults with and employs the services of Keen Realty, LLC as consultant under the agreement among Parent. Fabrics MI and Fabrics LLC and Keen Realty, LLC, dated March 20, 2007 and (y) obtains approval of the Bankruptcy Court, (B) the Net Cash Proceeds of such dispositions shall be applied in accordance with Section 2.3(a) hereof and (C) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iiiii) the issuance and sale by Parent any Borrower or Guarantor of Capital Stock of Parent (other than Disqualified Capital Stock) such Borrower or Guarantor after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iviii) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to a restricted stock award, an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(viv) the sale, transfer, lease, sublease or other disposition of assets of by any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of any Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale leased by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another such Borrower or Guarantor; provided, that, Agent any such sublease shall have receivedbe permitted if, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition sublease shall be on commercially reasonable prices and terms in a bona fide arms arm's length transaction, and
(Cv) as Licenses and sublicenses of the date of such sale Intellectual Property by a Borrower or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold Guarantor to another Borrower or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included Guarantor in the Borrowing Base or if a Cash Dominion Period exists, all ordinary course of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance business and consistent with Section 6.4(a) hereof,past practices.
(c) wind up, liquidate or dissolve except that any Guarantor or Subsidiary of Parent (other than a Borrower) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor or other Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor or other Subsidiary shall be duly and validly transferred and assigned to its shareholders, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent and Working Capital Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower or another GuarantorBorrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor or Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. .
(e) Notwithstanding anything to the contrary contary contained in Section 9.7(b) or any other provision of this AgreementAgreement or any of the other Financing Agreements, Borrowers and Guarantors shall not, directly or indirectly, close any retail store locations, without, in each instance, the prior written consent of Agent (and no Borrower such consent shall be implied from any action, inaction or Guarantor acquisience by Agent or any Lender) provided, that:
(i) No consent of Agent or any Lender shall be required in connection with either (A) the closing of a GOB Store or (B) the sale or other than disposition of the Real Property Leasehold Interests associated with a Petro CompanyGOB Store;
(ii) shall, prior No consent of Agent or any Lender shall be required in connection with the closing of an additional 13 stores (in addition to the Petro Existing Security Agreement Termination DateGOB Stores) to be selected by the Borrowers and Guarantors; provided, sell, lease, transfer, assign, license, abandon that consent of the Agent shall be required in connection with the sale of the Real Property Leasehold Interests associated with the closing of such stores; and
(iii) No consent of Agent or otherwise dispose any Lender shall be required in connection with the closing of any Capital Stock, Indebtedness a store by Borrowers or Guarantors in which all inventory and other assets of Borrowers or Guarantors located in such closed store are moved to a Petro Company unlessnew, as operating store location within a three (3) month period; provided, that consent of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default Agent shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to required in connection with the thirty-five (35%) percent sale of the Maximum CreditReal Property Leasehold Interests associated with the closing of such store.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and each Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any it; except, that, Borrower or any Guarantor may merge with or and into or consolidate with Borrower or any other Borrower or Guarantor (including any Person which Guarantor that only becomes a Borrower Guarantor after giving effect to such merger or Guarantor in connection with a Permitted Acquisition consolidation subject to the terms of Section 9.21(dconditions set forth herein) hereofso long as (i) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt written notice of any such merger or consolidation, (B) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (Cii) Borrower shall give Agent at least ten (10) Business Days prior notice thereof, which notice shall set forth in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance detail reasonably satisfactory to Agent, and in the case persons that are merging or consolidating, which person will be the surviving entity, the locations of a merger between any Borrower the assets of the persons that are merging or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewithconsolidating, and (D) Agent shall promptly receive true, correct the material agreements and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further(iii) if Borrower is a party to such merger or consolidation with a Guarantor, thatBorrower shall be the surviving entity, (iv) neither Borrower nor any Guarantor shall merge or consolidate with a Guarantor that exists under the laws of a country different than the country in which Borrower or such Guarantor exists and (v) prior to such merger or consolidation Borrower and Guarantors have taken (or caused to be taken) all steps required by Agent in good faith and in exercise of reasonable business judgment with respect thereto (including without limitation all steps required by Agent to maintain Agent’s liens on the Petro Existing Security Agreement Termination DateCollateral granted by Borrower and Guarantors, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Companyas well as the priority and effectiveness of such liens);
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock Equity Interests or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or any Guarantor); provided, that, Borrower shall provide Agent with five (5) and Business Days’ prior written notice of the sale or other disposition of Real Property Equipment having an aggregate fair market value in excess of, individually or cumulatively with other Equipment, $300,000,
(iii) the Capital Stock issuance and sale by Borrower or any Guarantor of Equity Interests of Borrower or such Guarantor after the date hereof (other than any PropcoSpecified Issuance); provided, that, (A) Agent shall have received not less than five (5) Business Days’ prior written notice of such issuance and sale by Borrower or such Guarantor, which notice shall specify the parties to whom such Equity Interests are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such Equity Interests and the net cash proceeds which it is anticipated will be received by Borrower or such Guarantor from such sale, (B) except as Agent may otherwise agree in writing, Borrower or such Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Equity Interests or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Equity Interests, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower with respect to the Letter of Credit or the right of Borrower and any Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower and Guarantors with Agent and the Lenders or are more restrictive or burdensome to Borrower or any Guarantor than the terms of any Equity Interests in effect on the date hereof, (D) all of the cash proceeds of any sale and issuance of any Equity Interests that is consummated after the first Term Loan Conversion shall be applied as set forth in Section 2.3(c), and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iiiiv) any of the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereofSpecified Issuances; provided, that, (A) if a Cash Dominion Period existsBorrower shall have provided, and Agent shall receive prompt have received, written notice at least thirty (30) days after any such Specified Issuance by Borrower or such Guarantor, which notice shall specify the parties to whom such Equity Interests were sold, the terms of such sale, the total amount realized from the issuance and sale of such Equity Interests and (B) if a Cash Dominion Period exists, all of the net cash proceeds received by Borrower or such Guarantor from such sale, (B) except as Agent may otherwise agree in writing, Borrower or such Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Equity Interests or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Equity Interests, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower with respect to the Letter of Credit or the right of Borrower and any Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower and Guarantors with Agent and the Lenders or are more restrictive or burdensome to Borrower or any Guarantor than the terms of any Equity Interests in effect on the date hereof, (D) all of the cash proceeds of any sale and issuance of such Capital Stock any Equity Interests that is consummated after the first Term Loan Conversion shall promptly be paid to Agent for application to the Obligations applied as set forth in accordance with Section 6.4(a2.3(c) hereofand (E) after giving effect thereto, no Change of Control or other Event of Default shall exist or have occurred,
(ivv) the issuance of Capital Stock Equity Interests of any Borrower or any Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or such Guarantor for the benefit of its employees, directors and consultants, ; provided, that, in no event shall such Borrower or such Guarantor be required to issue, or shall such Borrower or such Guarantor issue, Capital Stock Equity Interests pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant sales of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale Customer 2 Accounts only by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Customer 2 Factoring Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) the terms and conditions of the Customer 2 Factoring Agent Discount Documents (as in effect on the date hereof,); and
(c) wind up, liquidate or dissolve except that dissolve; except, that, any Guarantor may wind up, liquidate and dissolve, ; provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which Borrower or any Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent and the First Lien Agent (iiand Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to Borrower, (iv) Agent shall have received all documents and agreements that any Borrower or any Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no neither Borrower or nor any Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than five (5) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Second Lien Letter of Credit, Loan and Security Agreement (Lighting Science Group Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any Guarantor (iother than Group) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, Guarantor; provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Guarantors to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the issuance and sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of by any Borrower or Guarantor) and the sale Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Loans (but any Borrower shall be entitled to reborrow the principal amount of any Loans so repaid subject to the terms of this Agreement) and (E) as of the date of such issuance and sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viiiiv) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) business of worn-out or obsolete Equipment or Equipment no longer used or useful in the issuance and sale by business of any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent so long as (A) evidence that Agent has a valid and perfected first priority security interest such sales or other dispositions do not involve Equipment having an aggregate fair market value in and lien upon excess of $1,000,000 for all such Capital Stock Equipment disposed of in any fiscal year and (B) the net cash proceeds of such other agreements, documents and instruments as sale or disposition shall promptly be remitted to Agent may reasonably request for application to effectuate the purpose and intent of clause (A) aboveLoans,
(xv) the sale of Real Estate and Equipment Commodity Inventory by Alloys in connection accordance with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale terms of the Capital Stock Commodity Inventory Purchase Agreements, so long as (A) any such sale is made to a Person that is not an Affiliate of Alloys and pursuant to the reasonable requirements of Alloys’ business and upon commercially reasonable terms in an arms length transaction, (B) the net cash proceeds of any Propco such sale shall promptly be remitted to Agent for application to the Loans, and the leaseback of Real Property and Equipment owned by such Propco),
(xiC) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of any such sale, transfer or disposition sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and;
(xiivi) the lease or other disposition by Alloys to Muscle Shoals Fire Department (“MSFD”) of certain Real Property located in Colbert County, Alabama pursuant to the Ground Lease Agreement, dated on or about December 31, 2003, between Alloys, as landlord, and MSFD, as tenant (the “Muscle Shoals Ground Lease”); provided, that (A) Agent shall have received, in form and substance satisfactory to Agent, a true and complete copy of the Muscle Shoals Ground Lease, duly executed and delivered by Alloys and MSFD; and (B) Alloys shall not amend, modify, alter or change any of the terms of the Muscle Shoals Ground Lease in any material respect, without the prior written consent of Agent; or
(vii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms Senior Note Collateral in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection accordance with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any 2.7 of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,Intercreditor Agreement;
(c) wind up, liquidate or dissolve except that any Guarantor (other than Group) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower any Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Collateral Agent (and Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets to of such Guarantor to such Borrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan Agreement (Listerhill Total Maintenance Center LLC)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that it, EXCEPT THAT:
(i) any Subsidiary of Atlas Holdings which is not a Borrower or Guarantor may merge with or consolidate into any other Subsidiary of Atlas Holdings which is not a Borrower or Guarantor, and any wholly-owned Subsidiary of Atlas Holdings which is a Borrower or Guarantor may merge with and into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms wholly-owned Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaAtlas Holdings; PROVIDED, providedTHAT, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (A) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such entities to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (B) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (CD) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (E) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and ; and
(Dii) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company nothing set forth in Section 9.7(a)(i) above shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;construed as a limitation upon Section 9.7(c) below.
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for; EXCEPT FOR
(i) sales, transfers or other dispositions of assets other than Accounts or Receivables by a Borrower or a Guarantor to another Borrower or Guarantor;
(ii) sales of Inventory in the ordinary course of business,
(iiiii) customary pooling, exchange and similar arrangements with respect to Engines, Spare Parts and components consistent with the practices of Borrowers as of the date hereof;
(iv) asset swaps with respect to Engines, Spare Parts and components; PROVIDED, THAT, the assets received by Atlas Holdings or any of its Subsidiaries shall have a fair market value at least equal to that of the assets transferred and; PROVIDED, FURTHER, that with respect to any asset swap or series of related asset swaps involving assets of Atlas Holdings or any of its Subsidiaries having a market value in excess of $10,000,000, such determination shall be made by the Board of Directors of Atlas Holdings;
(v) asset sales by Atlas Freighter Leasing III, Inc. for the purpose of replacing its assets pursuant to and in accordance with the terms and conditions set forth in subsection 9.21 of the AFL III Financing Agreement as in effect on the date hereof; PROVIDED, THAT, the net cash proceeds of such sale (if any) are concurrently therewith applied in full to the repayment of Indebtedness described in the AFL III Financing Agreement and related chattel mortgages or other security agreements or in accordance with the terms and conditions of the AFL III Financing Agreement as in effect on the date hereof;
(vi) the sale by Atlas Freighter Leasing III, Inc. of up to four (4) AFL III Aircraft (as defined in the AFL III Financing Agreement) pursuant to and in accordance with the terms and conditions set forth in subsection 6.6(i) of the AFL III Financing Agreement as in effect on the date hereof; PROVIDED, THAT, the net cash proceeds of such sale, if any are concurrently therewith applied in full to the repayment of Indebtedness described in the AFL III Financing Agreement and related chattel mortgages or other security agreements;
(vii) the sale by Atlas Air of one (1) Financed Aircraft (as described in the Aircraft Credit Facility Agreement) pursuant to and in accordance with the terms and conditions set forth in subsection 6.7(iv) of the Aircraft Credit Facility Agreement as in effect on the date hereof; PROVIDED, THAT, the net cash proceeds of such sale, if any are concurrently therewith applied in full to the repayment of Indebtedness described in the Aircraft Credit Facility Agreement and related chattel mortgages or other security agreements;
(viii) the sale by Atlas Holdings and its Subsidiaries of up to three (3) Aircraft other than the Secured Aircraft if so required pursuant to the EETC Documents as in effect on the date hereof and in accordance with the terms thereof;
(ix) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $5,000,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree,
(x) without limitation upon Section 9.7(b)(iii), 9.7(b)(v), 9.7(b)(vi), 9.7(b)(vii), 9.7(b)(viii) or 9.7(b)(ix) above, the sale or other disposition of Real Property or (I) Spare Parts, provided that, after giving effect thereto the Capital Stock Borrowers shall be in compliance with the terms of any PropcoSection 7.3(i) hereof, and (II) assets not consisting of Accounts by Atlas Holdings and its Subsidiaries having a fair market value in an aggregate amount not to exceed $25,000,000 during the term hereof; providedPROVIDED, thatTHAT, (A) as of the date of consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (B) the consideration received shall be at least 75% cash; (C) upon any such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and (BD) all Net Cash Proceeds of any such sale or other disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall paid promptly be paid to Agent for application to the then outstanding Obligations in accordance with Section 6.4(a) 6.4 hereof,
(iiixi) leases by Borrowers as lessors or sublessors, of Aircraft and Engines on terms and otherwise in a manner consistent with the conduct of their respective businesses as conducted on the date hereof, including under ACMI Contracts,
(xii) the issuance and sale by Parent Atlas Holdings of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; providedPROVIDED, thatTHAT, (A) if a Cash Dominion Period existsother than with respect to the issuance of Capital Stock pursuant to the terms of the Reorganization Plan as approved by the Confirmation Order, Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds, if any, which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) if a Cash Dominion Period existssuch Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with the terms and conditions of Section 6.4(a6.4 hereof and (E) hereofas of the date of such issuance and sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ivxiii) the issuance and/or sale by any Subsidiary of Atlas Holdings (other than a Borrower or Guarantor) of any Capital Stock of such Subsidiary or the sale by any Subsidiary of Atlas Holdings (other than a Borrower or Guarantor) of any other assets; provided, that, (A) no Borrower or Guarantor shall have any liability in respect thereof, and (B) in the event of any sale of Capital Stock of a Subsidiary of Atlas Holdings which is subject to a security interest, lien, charge, pledge or other encumbrance of any Lender, such sale thereof shall be subject to such interest, the purchaser thereof shall be acceptable to Agent in all respects and Agent shall receive, in form and substance satisfactory to Agent, the express written assumption and acknowledgement by such purchaser of the interests of Agent and Lenders and the written agreement of such purchaser to be bound by all of the terms and conditions of the Financing Agreements to the extent of the Capital Stock acquired by such purchaser, and
(xiv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants; PROVIDED, provided, thatTHAT, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(c) wind up, liquidate or dissolve except that any Subsidiary of Atlas Holdings (other than a Borrower or a Guarantor) and any Guarantor (other than Atlas Holdings) may wind up, liquidate and dissolve; PROVIDED, providedTHAT, thatwith respect to any liquidation or dissolution of any Guarantor, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Agent (iiand Agent shall have received such evidence thereof as Agent may require) and Agent shall have received such deeds, assignments or other agreements as Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower or other Guarantor, as applicable, (iv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlas Air Worldwide Holdings Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any Subsidiary of Borrower to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any Borrower or Guarantor Foreign Subsidiary may merge with or into or consolidate with and into any other Borrower Foreign Subsidiary or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Person, provided, that, in each case as to any such merger or consolidation, each of the following conditions is satisfied as determined by Agent in good faithsatisfied: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Foreign Subsidiary to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the Foreign Subsidiary that is merging or consolidating, the person with whom such Foreign Subsidiary is merging or consolidating and the material agreements and documents relating to such merger or consolidation, (Bii) a Foreign Subsidiary shall be the surviving entity of such merger or consolidation, (iii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iv) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and (Cv) in the case of a merger between no event shall Borrower make, or be required to make, any Borrower payment or Guarantor and such newly formed corporation incur any obligation or limited liability company where such corporation or limited liability company is the surviving corporation or limited liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor is a party, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to with such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with consolidation or consolidate into take any Borrower or Guarantor other than another Petro Companyaction which is otherwise prohibited hereunder;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business and sales of Inventory by any Subsidiary of Borrower in the ordinary course of business,
(ii) the sale or other disposition of Equipment or of equipment of any Subsidiary of Borrower (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale such equipment of Real Property or the Capital Stock of any Propcosuch Subsidiary); provided, that,
(A) in the case of such sale or other disposition of Equipment by Borrower or equipment of a Subsidiary of Borrower other than a Foreign Subsidiary, (A1) all Net Proceeds from such sale shall be paid directly by the purchaser to Agent for application to the Revolving Loans in such order and manner as Agent may determine, (2) without limiting any other rights of Agent under this Agreement or any other Financing Agreement with respect to the establishment of Reserves or otherwise, Agent shall on the date of Agent’s receipt of the Net Proceeds of any such sale establish a Reserve in an amount equal to the Net Proceeds received by Agent with respect to such sale which Reserve shall not be reduced or terminated without the written consent of the Tranche B Loan Lender, (3) such sales or other dispositions do not involve equipment having an aggregate fair market value in excess of $500,000 for all such equipment disposed of in any fiscal year of Borrower or as Agent may otherwise agree, and (4) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, ; and
(B) in the case of such sale or other disposition shall be on commercially reasonable terms in of equipment by a bona fide arms length transactionForeign Subsidiary, (C1) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing and (2) as of the date of such sale and after giving effect thereto, the Excess Availability plus Unrestricted Cash shall be not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof7,500,000,
(iii) in addition to sales or other dispositions of equipment permitted under clause (ii) above, the sale or other disposition of Equipment or of equipment of any Subsidiary of Borrower to Borrower or any Subsidiary of Borrower so long as (A) such sales or other dispositions by Borrower or any Subsidiary of Borrower, other than a Foreign Subsidiary, do not involve equipment having an aggregate fair market value in excess of $750,000 for all such equipment disposed of in any fiscal year of Borrower or such Subsidiary or as Agent may otherwise agree and (B) such sales or other dispositions by Foreign Subsidiaries do not involve equipment having an aggregate fair market value in excess of $2,250,000 for all such equipment disposed of in any fiscal year of the Foreign Subsidiaries or as Agent may otherwise agree, and
(iv) the issuance and sale by Parent Borrower of Capital Stock of Parent (other than Disqualified Capital Stock) Borrower after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower from such sale, (B) if a Cash Dominion Period existsBorrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or the right of Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower with Agent and Lenders or are more restrictive or burdensome to Borrower than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(asuch order and manner as Agent may determine or at Agent’s option, to be held as cash collateral for the Obligations and (E) hereofas of the date of such issuance and sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ivv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant issuance of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) of Borrower to another Borrower or Guarantor; the holders of the Subordinated Notes and the Warrants to the extent required under the Subordinated Note Agreements as in effect on the date hereof, provided, that, in connection with the issuance of any such Capital Stock, (A) Agent shall have received, in form received not less than one (1) Business Day prior written notice of such issuance specifying the number of shares to be issued and substance reasonably satisfactory the basis for such issuance pursuant to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock the Subordinated Note Agreements and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition on and after giving effect theretoto such issuance, no Default or Event of Default shall exist or have occurred and be continuing, andoccurred,
(xiivii) in addition to sales or other dispositions of equipment permitted under clauses (ii) and (iii) above, the sale or other disposition by any Foreign Subsidiary of assets equipment of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); such Foreign Subsidiary provided, that, as to any such sale each of the following conditions is satisfied: (A) as Agent shall have received not less than ten (10) Business Days’ prior written notice of the date proposed sale by such Subsidiary of any of such sale or disposition equipment, which notice shall specify the parties to such sale, the purchase price and after giving effect theretomanner of payment thereof, no Default or Event of Default shall have occurred the equipment to be sold, and be continuingsuch other information with respect thereto as Agent may request, (B) all of the Net Proceeds payable to, or for the benefit of such Subsidiary in respect of such sale shall be in the form of immediately available funds received by such Subsidiary or disposition on the effective date of the transfer of the title to such equipment, (C) such sale shall be on commercially reasonable terms in a bona fide arms arms’ length transactiontransaction with a person that is not an Affiliate, (CD) all of such equipment so sold shall be leased back by the purchaser thereof to such Subsidiary and the respective Indebtedness arising pursuant to any such lease shall be permitted under Section 9.9(f) hereof, (E) no Default or Event of Default shall exist or have occurred and be continuing and as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall be not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof)7,500,000, (F) if upon the date of any such sale, not less than twenty (20%) percent of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition Net Proceeds shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,the terms hereof and without limiting any other rights of Agent under this Agreement or any of the other Financing Agreements with respect to the establishment of Reserves or otherwise, Agent shall on the date of Agent’s receipt of the Net Proceeds of any such sale establish a Reserve in an amount equal to the Net Proceeds received by Agent with respect to such sale which Reserve shall not be reduced or terminated without the written consent of the Tranche B Loan Lender;
(c) wind up, liquidate or dissolve dissolve, except that any Guarantor Foreign Subsidiary may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor in no event shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is liabilities, or make or be required to make any payment in connection with such winding up, liquidating or dissolving, unless such Indebtedness dissolution or take any other action which is otherwise expressly permitted prohibited hereunder, (ivii) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such winding Foreign Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (viii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred, or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (other than any Borrower, and including any Person which such Subsidiary that only becomes a Borrower Subsidiary after giving effect to such merger or Guarantor in connection with a Permitted Acquisition consolidation subject to the terms of Section 9.21(d) hereofconditions set forth herein) and (ii) any Borrower or Guarantor may merge with a newly formed corporation and into or limited liability company organized in consolidate with any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of Americaother Borrower, provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faithAgents: (Ai) Agent Agents shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agents, the Persons that are merging or consolidating, which Person will be the surviving entity, the locations of the assets of the Persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agents shall have received such other information with respect to such merger or consolidation as Agents may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Civ) in Agents shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor copy as filed promptly after such filing), and such newly formed corporation or limited liability company where such corporation or limited liability company is (v) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to AgentAgents, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent Agents may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any PropcoPermitted Dispositions; provided, that, in the event of a sale of Real Property (other than the Baldwyn Real Property) by any Borrower or Guarantor, (A) Agents shall have received not less than ten (10) Business Days’ prior written notice of such sale by such Borrower or Guarantor, which notice shall specify the parties to whom such Real Property is to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the sale of such Real Property and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) the terms and conditions of the sale thereof shall be acceptable to Agents, (C) except as Agents may otherwise agree in writing, all of the proceeds of the sale of such Real Property shall be paid to Working Capital Agent for application to the Obligations in accordance with the terms hereof and (D) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofoccurred,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(ivii) the issuance of Capital Stock of any Borrower or Guarantor Parent consisting of common stock pursuant to a restricted stock award, an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor Parent for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor Parent be required to issue, or shall such Borrower or Guarantor Parent issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(viii) the sale, transfer, lease, sublease or other disposition of assets of by any Borrower or Guarantor to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of any Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale leased by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another such Borrower or Guarantor; provided, that, Agent shall have receivedas to any such sublease, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (B) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition sublease shall be on commercially reasonable prices and terms in a bona fide arms arm’s length transaction, ,
(Civ) as Licenses and sublicenses of Intellectual Property by a Borrower or Guarantor to another Borrower or Guarantor in the ordinary course of business and consistent with past practices,
(v) the issuance of the date of such sale or disposition and after giving effect theretoSpecified Subordinated Indebtedness, the aggregate net book value of all of Specified Warrants and the assets so sold or disposed of in any fiscal year of Parent shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations Specified Common Stock in accordance with Section 6.4(athe term of the Specified Subordinated Indebtedness Documents, or
(vi) hereof,the Baldwyn Real Property Sale-Leaseback.
(c) wind up, liquidate or dissolve except that any Guarantor or Subsidiary of Parent (other than a Borrower) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied: (i) the winding up, liquidation and dissolution of such Guarantor or other Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (iii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor or other Subsidiary shall be duly and validly transferred and assigned to its shareholders, free and clear of any liens, restrictions or encumbrances other than the security interest and liens of Working Capital Agent (and Working Capital Agent shall have received such evidence thereof as Working Capital Agent may require) and Working Capital Agent shall have received such deeds, assignments or other agreements as Working Capital Agent may request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower or another GuarantorBorrower, (iiiv) Working Capital Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Working Capital Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor or Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;occurred; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any other Credit Party (other than any Excluded Subsidiary) to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except that that
(i) a Domestic Subsidiary of any Borrower (other than another Borrower, a Guarantor, or an Excluded Subsidiary) may merge with and into such Borrower with such Borrower being the surviving entity, provided, that following the consummation of any such merger, the assets owned by such Domestic Subsidiary prior to such merger shall not be deemed (I) Eligible Accounts unless the criteria set forth in Sections 9.10(i)(x), (xi) and (xii) hereof shall have been fully satisfied with respect to such assets and such Credit Party (in place of any subject Target or New Subsidiary as referred to in such Sections), as applicable, and such assets shall meet the criteria set forth in the definition of "Eligible Accounts" or (II) Eligible Equipment, unless, with respect to such assets, Agent shall have completed a field examination and appraisals and other examinations similar in scope to those performed on the Collateral prior to the date thereof by Agent with results reasonably satisfactory to Agent (and Agent shall have established additional eligibility criteria, availability reserves and percentage advance rates in its commercially reasonable discretion in light of the foregoing appraisals and field examination), and such assets shall meet the criteria set forth in the definition of "Eligible Equipment";
(ii) a Domestic Subsidiary of any Guarantor (other than another Guarantor, a Borrower, or an Excluded Subsidiary) may merge with and into such Guarantor with such Guarantor being the surviving entity,
(iii) any Domestic Subsidiary of any Borrower or any Guarantor that is not a Guarantor, a Borrower or an Excluded Subsidiary may merge with or into or consolidate with any other Domestic Subsidiary of any Borrower or any Guarantor (including any Person which becomes that is not a Guarantor, a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and an Excluded Subsidiary,
(iiiv) any Borrower or may merge with and into another Borrower,
(v) any Guarantor may merge with and into another Guarantor, so long as Parent Guarantor is the surviving entity to the extent Parent Guarantor is a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of party to such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of America, merger; provided, that, in each case connection with any merger or consolidation permitted pursuant to clauses (i) through (v) of this Section 9.7(a), each of the following conditions is satisfied as determined by Agent in good faith: (AI) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of such Persons to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to Agent, the Persons that are merging or consolidating, which Person will be the surviving entity, the locations of the assets of the Persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (BII) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (III) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (CIV) in as of the case effective date of the merger or consolidation and after giving effect thereto, Borrowers’ Excess Availability plus Qualified Cash shall be equal to or greater than $10,000,000, (V) Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor copy as filed promptly after such filing), and such newly formed corporation or limited liability company where such corporation or limited liability company is (VI) the surviving corporation or limited liability companyshall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfertransfer title to, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out out, surplus or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) and the sale of Real Property or the Capital Stock of any Propco; provided, that, Guarantor so long as (A) as of the date of such sale or disposition before and after giving effect theretoto any such sale or disposition, no Default or Event of Default shall have has occurred and be is continuing, (B) the proceeds of any such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be are paid to Agent for application to the Obligations as set forth herein, and (C) such Equipment is sold for at least the appraised value thereof as set forth on the most recent appraisal of Equipment then received by Agent in accordance with Section 6.4(a) 7.4 hereof,
(iii) the issuance sale or other disposition of Equipment (excluding worn-out, surplus and sale by Parent obsolete Equipment and Equipment no longer used or useful in the business of Capital Stock of Parent (other than Disqualified Capital Stockany Borrower or Guarantor) after the date hereof; provided, that, so long as (A) if a Cash Dominion Period existssuch sales or other dispositions do not involve such Equipment having an aggregate fair market value in excess of $5,000,000 for all such Equipment disposed of by all of the Borrowers and Guarantors in any fiscal year of Borrowers or as Agent may otherwise agree, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period existsbefore and after giving effect to any such sale or disposition, all no Default or Event of Default has occurred and is continuing, (C) the net cash proceeds of the any such sale and issuance of such Capital Stock shall promptly be or disposition are paid to Agent for application to the Obligations as set forth herein, and (D) such Equipment is sold for at least the appraised value thereof as set forth on the most recent appraisal of Equipment then received by Agent in accordance with Section 6.4(a) 7.4 hereof,, and
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such any Borrower or Guarantor for the benefit of its employees, directors and consultantsconsultants of such Borrower or any other Credit Party, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the transfer, sale, transfer, lease, sublease lease or licensing of all or part of such Borrower's or Guarantor’s Intellectual Property or any items of Equipment (other disposition than Eligible Equipment) with a fair market value not to exceed $10,000,000 in the aggregate for all such Equipment of assets the Borrowers or Guarantors to a Domestic Subsidiary (other than an Excluded Subsidiary) of any such Borrower or Guarantor or to another Borrower or Guarantor,
(vi) the grant of non-exclusive licenses of Intellectual Property in the ordinary course of business,
(vii) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or any other disposition of Cash Equivalents for fair market value in the ordinary course of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantor; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent : (A) evidence that Agent has immediately prior to and as a valid and perfected first priority security interest in and lien upon all result of such Capital Stock and (B) such other agreementstransfer, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer lease or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of such sale, transfer or disposition and after giving effect theretolicensing, no Default or Event of Default shall have occurred and be continuing; and (B) to the extent such transfer, andsale, lease or licensing is to a Domestic Subsidiary which is not a Borrower or Guarantor, (1) prior to such transfer, sale, lease or licensing to such Domestic Subsidiary, Agent shall have had a reasonable opportunity to conduct customary and other business, legal, and collateral due diligence with respect to such Domestic Subsidiary, including, but not limited to, ordering, in form and substance reasonably satisfactory to Agent, and reviewing to its satisfaction, UCC, tax lien, litigation, bankruptcy and intellectual property searches from all offices that Agent deems reasonably appropriate in its sole discretion, certificates of status with respect to such Domestic Subsidiary, in form and substance satisfactory to Agent, which certificates shall be issued by the appropriate officer of the jurisdiction of organization of such Domestic Subsidiary and by the appropriate officers of each other jurisdiction in which such Domestic Subsidiary is qualified to do business, which certificates shall indicate that such Domestic Subsidiary is in good standing in such jurisdictions; and (2) such Domestic Subsidiary shall have executed and delivered a Guaranty, a joinder to this Agreement, and such other documents (including but not limited to a non-restrictive license to use) as Agent may reasonably request to protect and perfect its interest in such Collateral each in form and substance reasonably satisfactory to Agent in its sole discretion,
(xiivi) the transfer, sale, lease or licensing of all or part of such Borrower's or Guarantor’s Intellectual Property in the ordinary course of such Borrower's or Guarantor’s business to any Person other than a Subsidiary of such Borrower or Guarantor,
(vii) the consignment of Inventory by the Credit Parties in the ordinary course of business so long as the fair market value of all such consigned Inventory for all Credit Parties (other than Excluded Subsidiaries) at any one time does not exceed $500,000 in the aggregate,
(viii) the transfer or sale or other disposition of assets to any Joint Venture, Foreign Subsidiary of any Borrower or Guarantor not otherwise Guarantor, Excluded Subsidiary or to Jazz WOFE in connection with any investment or other transaction permitted under the foregoing provisions by Section 9.10(h); provided, that all transfers or sales of this Section 9.7(b) above items of Equipment of any Credit Party (other than the sale or disposition of Accounts an Excluded Subsidiary) to any Joint Venture, Foreign Subsidiary of any Borrower or Guarantor Guarantor, or Capital Stock Excluded Subsidiary shall be limited to Equipment with a fair market value not to exceed $2,500,000 in the aggregate for all such Equipment of the Credit Parties (other than Excluded Subsidiaries) and for all such transfers and sales and shall be only permitted to the extent that any Borrower)such transfer or sale is in the ordinary course of the applicable Credit Parties’ business; and further provided, that, (A) as of the date of such sale or disposition that immediately prior to and after giving effect theretoto such transfer or sale, no Default or Event of Default shall have occurred and be continuing, ,
(Bix) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as the issuance of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year stock options of Parent shall not exceed $20,000,000Guarantor to directors or employees of any Credit Party, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood provided that any such sale-leaseback transaction shall be governed issuance does not constitute, cause, or otherwise result in a Change of Control or is not otherwise prohibited by the terms of Section 9.7(b)(x) hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereofthis Agreement,
(cx) wind up, liquidate or dissolve except the issuance of Capital Stock of Parent Guarantor provided that any Guarantor may wind upsuch issuance does not constitute, liquidate and dissolvecause, or otherwise result in a Change of Control or is not otherwise prohibited by this Agreement,
(xi) in order to resolve disputes that occur in the ordinary course of business, the discount (or other compromise for less than face value thereof) of notes or Accounts, provided, that, each of the following conditions is satisfied, (i) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower or another Guarantor, (ii) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iii) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (iv) Agent shall receive prompt written notice of any such winding up, liquidation or dissolution, and (v) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing,
(xii) the transfers of condemned property to the respective Governmental Authority or agency that has condemned the same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as party of an insurance settlement,
(xiii) the dispositions of Cash Equivalents, and
(xiv) other dispositions which do not in the aggregate exceed $1,000,000 per fiscal year;
(dc) enter into any sale-leaseback transactionwind up, liquidate or dissolve, except for the sale-leaseback as permitted by clause (a) of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco)this Section; provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; andor
(ed) agree to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, no Borrower foregoing unless such agreement is conditioned upon Agent's consent thereto or Guarantor if all outstanding Obligations (other than contingent indemnification Obligations) shall be indefeasibly paid in full as a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as result of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent consummation of the Maximum Credittransactions contemplated thereby.
Appears in 1 contract
Samples: Loan and Security Agreement (Jazz Technologies, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower shall not, and Guarantor shall not permit any Subsidiary of Borrower to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that (i) any it, EXCEPT THAT a majority-owned Subsidiary of Borrower or Guarantor may merge into or with or into or consolidate with any other Borrower or Guarantor (including any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms wholly-owned domestic Subsidiary of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower; PROVIDED, providedTHAT, that, in each case each of the following conditions is satisfied as determined by Agent in good faithAgent: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of any the intention of Borrower to so merge or consolidate, and such merger or consolidationinformation with respect thereto as Agent may reasonably request, (Bii) as of the effective date of the such merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuingoccurred, (Ciii) in Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the case certificate or certificates of a merger between any as filed with each appropriate Secretary of State, (iv) Borrower or Guarantor and such newly formed corporation or limited liability company where such corporation or limited liability company is wholly-owned domestic Subsidiary shall be the surviving corporation or limited entity and shall immediately upon the effectiveness of the merger expressly confirm in writing pursuant to an agreement, in form and substance satisfactory to Agent, its continuing liability company, such corporation or limited liability company shall have expressly confirmed, ratified and assumed in respect of the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a party, in form party and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, (v) any Guarantor shall ratify and confirm that its guarantees of the Obligations shall apply to the Obligations as assumed by such surviving entity and ratify and confirm any other agreements by such Obligors in favor of Agent, and (Dvi) Agent the surviving entity shall promptly receive truenot become obligated with respect to any Indebtedness, correct and complete copies nor any of all material agreementsits property become subject to any lien, documents and instruments relating to unless Borrower could incur such merger Indebtedness or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Companycreate such lien hereunder;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except forEXCEPT FOR
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of Borrower) or other assets (other than any Collateral) no longer used in the conduct of its business so long as such sales or other dispositions do not involve Equipment or such other assets (other than any Collateral) having an aggregate fair market value in excess of $17,500,000 for all such Equipment or such other assets (other than Collateral) disposed of in any fiscal year of Borrower or Guarantoras Agent may otherwise agree, or
(iii) and [intentionally omitted]
(iv) the issuance or sale of Real Property or the Capital Stock by Borrower or any Subsidiary of any PropcoBorrower after the date hereof or as sales or issuances of Capital Stock issued by Subsidiaries formed or acquired to the extent permitted hereby; providedPROVIDED, thatTHAT, (A) as in the case of the date of any such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified a Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period existsStock of Borrower, Agent shall receive prompt have received not less than ten (10) Business Days' prior written notice of such issuance and sale by Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and (B) if a Cash Dominion Period exists, all sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower from such sale, (B) Borrower shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof prior to the end of the sale and issuance term of this Agreement, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of Borrower to request or receive Loans or which are more restrictive or burdensome to Borrower than the terms of any Capital Stock of Borrower in effect on the date hereof, and (D) in the case of any such sale or issuance of Capital Stock of a Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock of Borrower, after giving effect to such issuance or sale, no Event of Default shall promptly exist or have occurred and be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,continuing;
(ivA) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock (and options therefor) in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof, (B) [intentionally omitted], (C) the issuance of Capital Stock of Borrower consisting of common stock pursuant to the exercise of options therefor that have been issued pursuant to the Plan of Reorganization as in effect on the date hereof, and (D) the issuance of Capital Stock to qualify directors to the extent required by applicable law in the ordinary course;
(vi) the issuance of Capital Stock of Borrower consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and
(v) the sale, transfer, lease, sublease or other disposition of assets of any Borrower or Guarantor to another Borrower or Guarantor,
(vivii) [intentionally omitted]
(viii) the grant licensing by Borrower or a Subsidiary of non-exclusive licenses Borrower of Intellectual Property owned by it to another Person; PROVIDED, THAT, as to any such license: (A) the transaction with respect to such license is an arm's length transaction in the ordinary course of business,
business of Borrower or such Subsidiary, (viiB) leases Borrower or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) the sale or other disposition of Cash Equivalents for such Subsidiary receives at least fair market value with respect to the value of such license as determined by Borrower in good faith, and (C) any rights of such Borrower or such Subsidiary shall be subject to the ordinary course rights of business,Agent in such Intellectual Property, including, without limitation, the rights of Agent to use such Intellectual Property in connection with the exercise of Agent's rights and remedies with respect to the Collateral;
(ix) investments permitted by Section 9.10 hereof;
(x) sale and leaseback transactions with respect to Equipment, Real Property or other assets not constituting Collateral so long as the issuance following conditions shall have been satisfied, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or leaseback and sale by any Borrower such other information with respect thereto as Agent may reasonably request, (other than ParentB) after giving effect to such transaction no Default or Guarantor Event of its Capital Stock Default exists or has occurred and is continuing, (other than Disqualified Capital StockC) to another such transaction is an arm's length transaction and Borrower or Guarantor; providedsuch Subsidiary, thatas the case may be, receives at least fair market value, as determined in good faith by Borrower, in connection with such transaction and (D) if requested by Agent, Agent shall have received, in form and substance reasonably satisfactory to Agent Agent, a Collateral Access Agreement with respect to such Equipment, Real Property or other assets;
(xi) [intentionally omitted];
(xii) sales or other dispositions by Borrower of assets or properties consisting of the Note Collateral; provided, that, as to each and all such sales or dispositions, (A) evidence that except with respect to the sale of the Dayville, Connecticut Closed Plant, Agent has shall have received not less than ten (10) Business Days' prior written notice of such sale or disposition, and such other information with respect thereto as Agent may reasonably request, and (B) such sale or disposition is consummated in accordance with the terms and conditions of the Noteholder Agreements;
(c) form or acquire any Subsidiaries, EXCEPT, THAT, Borrower may form or acquire Subsidiaries (to the extent permitted by Sections 9.7(a) and 9.10 hereof) after the date hereof; PROVIDED, THAT, (i) as of the date of such formation or acquisition, and after giving effect thereto or otherwise, no Default or Event of Default shall exist or have occurred and be continuing, (ii) such Subsidiary shall be incorporated in a valid State of the United States, (iii) upon such formation or acquisition, Borrower shall notify Agent of such formation or acquisition and perfected Borrower shall cause any such Subsidiary to execute and deliver to Agent, in form and substance satisfactory to Agent: (A) an absolute and unconditional guarantee of payment of all of the Obligations, (B) a security agreement granting to Agent, for itself and the benefit of Lenders a first priority security interest in and lien upon all of the accounts receivable and inventory (and related property comparable to that included as Collateral) of such Capital Stock Subsidiary, (C) related UCC financing statements, and (BD) such other agreements, documents and instruments as Agent may reasonably request require in connection therewith as to effectuate the purpose validity and intent enforceability thereof, (iv) upon such formation or acquisition, to the extent not prohibited by the Note Indenture, Borrower shall, and shall cause each Subsidiary of clause Borrower that owns any Capital Stock in such Subsidiary being formed or acquired to, (A) above,
execute and deliver to Agent, a pledge and security agreement, in form and substance satisfactory to Agent, granting to Agent a pledge of and lien on all of the issued and outstanding shares of Capital Stock of such Subsidiary so formed or acquired that are owned by Borrower or the Subsidiary forming or acquiring such Subsidiary, (xB) deliver the original stock certificates evidencing such shares of Capital Stock (or such other evidence as may be issued in the case of a limited liability company), together with stock powers with respect thereto duly executed in blank (or the equivalent thereof in the case of a limited liability company in which such interests are certificated, or otherwise take such actions as Agent shall reasonably require with respect to Agent's security interests therein), and (C) deliver related UCC financing statements, and (v) the sale amount of Real Estate and Equipment the investment by Borrower in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of such Subsidiary and any Propco and other amounts paid by Borrower to or in connection with the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer formation or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date acquisition of such sale, transfer or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(xii) the sale or other disposition of assets of any Borrower or Guarantor not otherwise permitted under the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Stock of any Borrower); provided, that, (A) as of the date of such sale or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent Subsidiary shall not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of amount permitted under Section 9.7(b)(x) 9.10 hereof), (F) if any of the assets to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,;
(cd) wind up, liquidate or dissolve except that dissolve, EXCEPT, THAT any Guarantor Subsidiary of Borrower (other than a Guarantor) may wind up, liquidate and dissolve, provided, thatdissolve so long as, each of the following conditions is satisfied, (i) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (ii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor Subsidiary shall be duly and validly transferred and assigned to a Borrower its shareholders or another Guarantorits creditors, (iiiii) upon the request of Agent, Borrower shall deliver to Agent shall have received all documents and agreements that any Borrower or Guarantor any Subsidiary has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiiv) no Borrower or Guarantor such Subsidiary, as the case may be, shall assume not acquire any Indebtedness, obligations or material liabilities not otherwise permitted hereby as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivv) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Subsidiary to wind up, liquidation liquidate or dissolutiondissolve, and (vvi) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco)occurred; provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; andor
(e) agree to do any of the foregoing. Notwithstanding anything foregoing provided that Borrower and its Subsidiaries may enter into agreements to effectuate any transaction otherwise prohibited by this Section 9.7 so long as (i) concurrently with the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, as of the date execution and delivery of any such saleagreement, lease, transfer, assignment, license, abandonment Borrower shall provide Agent notice thereof and (ii) the consummation of any such agreement is conditioned upon obtaining either (A) the consent of Agent or disposition, no Default the Required Lenders or Event (B) the termination of Default shall have occurred this Agreement and be continuing the other Financing Agreements and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent repayment in full of all outstanding Obligations in accordance with the Maximum Creditterms and conditions contained herein.
Appears in 1 contract
Samples: Loan and Security Agreement (Anchor Glass Container Corp /New)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly:,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) any Borrower or Guarantor may merge with or and into or consolidate with any other Borrower or Guarantor wholly-owned Subsidiary of Parent (including other than any Person which becomes a Borrower or Guarantor in connection with a Permitted Acquisition subject to the terms of Section 9.21(d) hereof) and (ii) any Borrower or Guarantor may merge with a newly formed corporation or limited liability company organized in any state in the United States of America which has no assets or liabilities solely for the purpose of either changing the type of organization of such Borrower or Guarantor to a corporation or limited liability company or changing the jurisdiction of organization of such Borrower or Guarantor to any state in the United States of AmericaBorrower), provided, that, in each case each of the following conditions is satisfied as determined by Agent in good faith: (Ai) Agent shall receive prompt have received not less than ten (10) Business Days’ prior written notice of any the intention of such Subsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail reasonably satisfactory to Agent, the persons that are merging or consolidating, which person will be the surviving entity, the locations of the assets of the persons that are merging or consolidating, and the material agreements and documents relating to such merger or consolidation, (Bii) Agent shall have received such other information with respect to such merger or consolidation as Agent may reasonably request, (iii) as of the effective date of the merger or consolidation and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (Civ) in Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the case certificate or certificates of merger to be filed with each appropriate Secretary of State (with a merger between any Borrower or Guarantor and copy as filed promptly after such newly formed corporation or limited liability company where such corporation or limited liability company is filing), (v) the surviving corporation or limited liability companyentity shall expressly confirm, such corporation or limited liability company shall have expressly confirmed, ratified ratify and assumed assume the Obligations of such Borrower or Guarantor and the Financing Agreements to which such Borrower or Guarantor it is a partyparty in writing, in form and substance reasonably satisfactory to Agent, and in the case of a merger between any Borrower or Guarantor Borrowers and such newly formed corporation or limited liability company, such Borrower, Guarantor or newly formed corporation or limited liability company Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, and (D) Agent shall promptly receive true, correct and complete copies of all material agreements, documents and instruments relating to such merger or consolidation; provided, further, that, prior to the Petro Existing Security Agreement Termination Date, no Petro Company shall be merged with or consolidate into any Borrower or Guarantor other than another Petro Company;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $1,000,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and
(iii) the issuance and the sale by any Borrower or Guarantor of Real Property or the Capital Stock of any Propcosuch Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the Net Cash Proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, if as of the date of such issuance and sale or disposition after giving effect thereto, a Cash Dominion Event has occurred and is continuing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent’s option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transaction, (C) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (D) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed by the terms of Section 9.7(b)(x) hereof), (E) if the Equipment or Real Property to be sold or disposed of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iii) the issuance and sale by Parent of Capital Stock of Parent (other than Disqualified Capital Stock) after the date hereof; provided, that, (A) if a Cash Dominion Period exists, Agent shall receive prompt written notice of such issuance and sale and (B) if a Cash Dominion Period exists, all of the net cash proceeds of the sale and issuance of such Capital Stock shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,
(iv) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock ownership plan, employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, and,
(v) the sale, transfer, lease, sublease sales or other disposition dispositions of assets Excluded Property, provided, that, as to any such sale or other disposition, each of any Borrower or Guarantor to another Borrower or Guarantor,
the following conditions is satisfied: (viA) the grant consideration to be received by Borrowers and Guarantors shall be paid or payable in cash and shall be paid contemporaneously with consummation of non-exclusive licenses the transaction; (B) the consideration paid or payable shall be in an amount not less than the fair market value of Intellectual the Excluded Property in the ordinary course of business,
disposed of; (viiC) leases or subleases of Real Property permitted under Section 9.8(m) or 9.12 hereof,
(viii) such transaction does not involve the sale or other disposition of any Equity Interest in any Subsidiary or of any Inventory or Receivables; (D) the Net Cash Equivalents for Proceeds from any such sale or other disposition, shall be applied to the Obligations (without permanent reduction of the Maximum Credit as a result thereof); (E) the aggregate fair market value of all such Excluded Property sold or otherwise disposed of shall not exceed $5,000,000 in the ordinary course aggregate during the term of business,
(ix) the issuance and sale by any Borrower (other than Parent) or Guarantor of its Capital Stock (other than Disqualified Capital Stock) to another Borrower or Guarantorthis Agreement; provided, that, Agent shall have received, in form and substance reasonably satisfactory to Agent (A) evidence that Agent has a valid and perfected first priority security interest in and lien upon all such Capital Stock and (BF) such other agreements, documents and instruments as Agent may reasonably request to effectuate the purpose and intent of clause (A) above,
(x) the sale of Real Estate and Equipment in connection with a sale-leaseback transaction permitted under Section 9.7(d) hereof (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco),
(xi) the sale, transfer or other disposition by the Petro Companies to an Excluded Subsidiary of the franchise agreements between any of the Petro Companies and its franchisees; provided, that, as of the date of any such salesale or other disposition, transfer or disposition and in each case after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and,
(xiivi) the sale sales or other disposition dispositions of assets of any Borrower or Guarantor not otherwise permitted under investment property from the foregoing provisions of this Section 9.7(b) above (other than the sale or disposition of Accounts of any Borrower or Guarantor or Capital Preferred Stock of any Borrower)Portfolio; provided, that, all of the proceeds of from such sales or other dispositions shall be (A) as reinvested in other investment property consisting of shares of preferred stock of public companies (other than a Borrower), with such shares to be maintained in the date of such sale Specified Investment Account or disposition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (B) such sale or disposition shall be on commercially reasonable terms in a bona fide arms length transactionused for general operating, (C) as of the date working capital and other proper corporate purposes of such sale or disposition and after giving effect thereto, the aggregate net book value of all of the assets so sold or disposed of in any fiscal year of Parent shall Borrower not exceed $20,000,000, (D) as of the date of such sale or disposition and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000, (E) such sale or disposition shall not be in connection with any sale-leaseback transaction (it being understood that any such sale-leaseback transaction shall be governed otherwise prohibited by the terms hereof, and
(vii) the transfer of Section 9.7(b)(x) hereof), (F) if any cash for the payment of Indebtedness to the extent such payments are permitted under this Agreement and for the payment of other payables in the ordinary course of the assets to be sold or disposed business of (including the Equipment or Real Property owned by any Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale or disposition shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof,Borrowers and Guarantors.
(c) wind up, liquidate or dissolve except that any Guarantor (other than Parent) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (i) the winding up, liquidation and dissolution of such Guarantor shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Guarantor shall be duly and validly transferred and assigned to a Borrower Borrower, free and clear of any liens, restrictions or another Guarantorencumbrances other than the security interest and liens of Agent (and Agent shall have received such evidence thereof as Agent may reasonably require) or as permitted under Section 9.8 of this Agreement and Agent shall have received such deeds, assignments or other agreements as Agent may reasonably request to evidence and confirm the transfer of such assets of such Guarantor to a Borrower, (iiiv) Agent shall have received all documents and agreements that any Borrower or Guarantor has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iiiv) no Borrower or Guarantor shall assume any Indebtedness, obligations or liabilities as a result of such winding up, liquidation or dissolution, or otherwise become liable in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness is otherwise expressly permitted hereunder, (ivvi) Agent shall receive prompt have received not less than ten (10) Business Days prior written notice of any the intention of such winding Guarantor to wind up, liquidation liquidate or dissolutiondissolve, and (vvii) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;; or
(d) enter into any sale-leaseback transaction, except for the sale-leaseback of Real Property and Equipment (including the sale of the Capital Stock of any Propco and the leaseback of Real Property and Equipment owned by such Propco); provided, that, each of the following conditions is satisfied: (i) Agent shall receive prompt written notice of any such sale-leaseback, (ii) promptly upon Agent’s request, Agent shall have received true, correct and complete copies of all material agreements, documents and instruments related to such sale-leaseback, (iii) as of the date of the consummation of such sale-leaseback and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iv) if any Equipment or Real Property subject to such sale leaseback transaction (whether directly or indirectly through Propco) is included in the Borrowing Base or if a Cash Dominion Period exists, all of the net cash proceeds of such sale-leaseback shall promptly be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof, (v) such sale-leaseback transaction shall be on commercially reasonable terms in a bona fide arms-length transaction, and (vi) as of the date of such sale-leaseback transaction and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than $20,000,000; and
(e) agree to do any of the foregoing. Notwithstanding anything foregoing (unless such agreement has been consented to in writing by Agent and Required Lenders, or includes as a condition to the contrary contained in this Agreement, no Borrower effectiveness of such agreement that Agent’s and Required Lenders’ consent thereto shall be obtained or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, sell, lease, transfer, assign, license, abandon or otherwise dispose of any Capital Stock, Indebtedness or other assets to a Petro Company unless, that as of the date of any such sale, lease, transfer, assignment, license, abandonment or disposition, no Default or Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to the thirty-five (35%) percent consummation of the Maximum Credittransactions contemplated thereby all of the Obligations shall be fully and finally paid and satisfied and this Agreement shall be terminated in accordance with the terms hereof).
Appears in 1 contract
