Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; or (i) sales of Inventory in the ordinary course of business, (ii) the sale of any of the Bedford Real Estate; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing; (iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing; (iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof; (v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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; (vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request, (c) wind up, liquidate or dissolve; or (d) agree to do any of the foregoing.
Appears in 3 contracts
Samples: Loan Agreement (RBX Corp), Loan Agreement (RBX Corp), Loan Agreement (RBX Industries Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. None of Parent or Borrower and ------------------------------------------------------- Guarantor shall, nor shall not, and shall not it permit or suffer any Subsidiary of their respective 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; orit unless Parent or such Borrower is the surviving corporation, such merger or consolidation is permitted under Section 9.10, and no Event of Default has occurred and is then continuing (after giving effect to such merger or consolidation);
(b) sell, transfer, or otherwise dispose of all or substantially all of its assets;
(c) make any Asset Sale unless (i) sales Parent or such Borrower or Subsidiary receives consideration at the time of Inventory such Asset Sale at least equal to the fair market value (as determined in good faith by Parent's Board of Directors) of the ordinary course of business,
assets subject to such Asset Sale, (ii) subject to the sale of any proviso to this clause (ii), at least 85% of the Bedford Real Estate; providedconsideration for such Asset Sale is in the form of cash, thatCash Equivalents, -------- ---- as or liabilities of Parent, any Borrower, or any such Subsidiary (other than liabilities that are by their terms subordinated to each such sale, each of the following conditions is satisfied as determined Obligations) that are assumed by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower transferee of such propertyassets (so long as following such Asset Sale there is no further recourse to Parent, which notice shall set forth in reasonable detail satisfactory to Lenderany Borrower, the parties to such sale, the purchase price and the manner or any other Subsidiary of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower Parent with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsedliabilities), provided, thathowever, that in no event the case of any Asset Sale of Accounts or general intangibles for money due or to become due, or chattel paper or instruments related thereto, 100% of the consideration therefor shall Borrower be required to pay in the form of cash, (or -------- ---- be chargediii) upon receipt of any interest or other amounts Net Proceeds from an Asset Sale of Collateral, such Net Proceeds of Collateral are paid to Lender in respect to the extent of such cash collateral, (E) fifty (50%) percent and for application to the then outstanding principal balance of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 Asset 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 exist or have has occurred and be is continuing;; or
(vid) form or acquire any Subsidiaries not in existence on the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for date hereof (unless each such Subsidiary has complied with the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,requirements set forth Section 9.10(d)); or
(ce) wind up, liquidate or dissolve; dissolve or
(df) agree to do any of the foregoing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Atlantic Express Transportation Corp), Loan and Security Agreement (Atlantic Express Transportation 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; or
it except that any wholly-owned Subsidiary of Parent (iother than any Borrower) sales may merge with and into or consolidate with any other wholly-owned Subsidiary of Inventory in Parent (other than any Borrower, and including any such Subsidiary that only becomes a Subsidiary after giving effect to such merger or consolidation subject to the ordinary course of business,
(iiconditions set forth herein) the sale of and any of the Bedford Real Estate; Borrower may merge with and into or consolidate with any other Borrower, provided, that, -------- ---- as to in each such sale, case each of the following conditions is satisfied as determined by LenderAgent: (Ai) Lender Agent shall have received not less than ten (10) Business Days' ’ prior written notice of the proposed sale by Borrower intention of such propertySubsidiaries to so merge or consolidate, which notice shall set forth in reasonable detail satisfactory to LenderAgent, the parties 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 salemerger or consolidation, the purchase price and the manner of payment thereof, the total amount of all cash or (ii) Agent shall have received such other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower information with respect to such sale, the total estimated costs related to such sale and such other matters merger or consolidation as Lender Agent may reasonably request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (Hiii) as of the effective date of such sale the merger or consolidation and after giving effect thereto, no 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 occurred, (iv) 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 continuingfiled with each appropriate Secretary of State (with a copy as filed promptly after such filing), and (v) 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 reasonably satisfactory to Agent, and Borrowers and Guarantors shall execute and deliver such other agreements, documents and instruments as Agent may request in connection therewith;
(iiib) the sale by Borrower sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Equipment Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for:
(i) Permitted Dispositions; provided, that, in the event of a sale of Real Property (other than the Bedford Baldwyn Real Estate)Property) by any Borrower or Guarantor, provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, 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 Real Property is 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 Real Property and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) 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 8.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereofthereof shall be acceptable to Agent, shall not include any terms that limit the right of Borrower to request or receive Loans or Letter of Credit Accommodations or to amend or modify any (C) except as Agent may otherwise agree in writing, all of the terms and conditions of this Agreement or any proceeds of the other Financing Agreements or otherwise in any way relate to or affect the arrangements sale of Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof Real Property shall be paid to Lender Agent for application to the Obligations in such order and manner as Lender may determine accordance with the terms hereof and (ED) 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 exist or have occurred and be continuing;occurred,
(viii) the issuance of Capital Stock of 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) plan plans of Borrower or Guarantor Parent for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor Parent be -------- ---- required to issue, or shall Borrower or Guarantor Parent issue, Capital Stock pursuant to such stock option plan plans or 401(k) plan plans which would result in a Change of Control or other Event of Default,
(iii) the sublease by any Borrower or Guarantor of any Real Property leased by such Borrower or Guarantor; provided, that, as to any such sublease, (A) after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and (B) such sublease shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction,
(iv) Licenses and sublicenses of Intellectual Property by a Borrower shall give Lender prior written notice or Guarantor to another Borrower or Guarantor in the ordinary course of business and consistent with past practices,
(v) the issuance of the material terms Specified Subordinated Indebtedness, the Specified Warrants and the Specified Common Stock in accordance with the term of such stock option plan and such other information with respect thereto as Lender may reasonably request,the Specified Subordinated Indebtedness Documents, or
(vi) 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, (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, (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, (v) 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, (vi) Agent shall have received not less than ten (10) Business Days prior written notice of the intention of such Guarantor or Subsidiary to wind up, liquidate or dissolve, and (vii) 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; or
(d) agree to do any of the foregoing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as such sales 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 Borrower; (iii) any transfer by a Subsidiary of Borrower of any of its respective property or assets to Borrower or any other Subsidiary of Borrower, and (iv) the Bedford Real Estateissuance and sale by Borrower of Capital Stock of Borrower after the date hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 include any limitation on the right of Borrower to request or receive Revolving 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 or Guarantor with Lender or are more restrictive or burdensome to 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 proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof of its Capital Stock shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine determine, 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 2 contracts
Samples: Loan and Security Agreement (American Biltrite Inc), Loan and Security Agreement (Congoleum Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor The Borrowers shall not, and shall not permit any Subsidiary to, 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; 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are used to purchase replacement Equipment; or (B) such sales do not involve Equipment having an aggregate fair market value in excess of $50,000 for all such Equipment disposed of in any fiscal year of the Borrowers; (iii) the sale of any real property for the price and pursuant to the terms and conditions as agreed in advance in writing by the Lender so long as the proceeds thereof are used only as agreed to in writing by the Lender, (iv) the issuance and sale by Coachmen of Capital Stock after the Bedford Real Estate; date hereof, provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) the Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' ’ prior written notice of such issuance and sale by Borrower or GuarantorCoachmen, 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 Guarantor Coachmen from such sale, ; (B) Borrower or Guarantor Coachmen shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, unless otherwise permitted in Section 8.11 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 include any limitation on the right of Borrower to request or receive Loans or Letter of Credit Accommodations or the Borrowers to amend or modify any of the terms and conditions of this Loan Agreement or any of the other Financing Agreements Transaction Documents or otherwise in any way relate to or affect the arrangements of Borrower or Guarantor the Borrowers with the Lender or are more restrictive or burdensome to Borrower or Guarantor the Borrowers than the terms of any Capital Stock in effect on the date hereof, ; (D) all of the proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to the Lender for application to the Obligations in such order and manner as Lender may determine if so requested by the Lender; 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred occurred; and be continuing;
(viv) the issuance grant of Capital Stock non-exclusive licenses of Borrower or Guarantor consisting Intellectual Property in the ordinary course of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,business;
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 2 contracts
Samples: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary toNeither of Borrowers shall, directly or indirectly., without the prior written consent of Agent,
(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; or
(i) sales , except that each of Inventory in Borrowers or its Subsidiaries may merge into or with the ordinary course of business,
(ii) the sale of any of the Bedford Real Estate; other Borrower or its Subsidiaries, provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (Ai) Lender Agent shall have received not less than ten thirty (1030) Business Days' Days prior written notice of the proposed sale by Borrower intention of such property, which notice shall set forth in reasonable detail satisfactory Borrowers or their Subsidiaries to Lender, the parties to such sale, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale so merge and such other matters information in connection therewith as Lender Agent or Lenders may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (Hii) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the effective date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (A) at the time of the grant of the license 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 continuingoccurred, (Biii) the rights of the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender 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 executed license certificate of merger as filed with the appropriate Secretary of State, (iv) the surviving entity shall immediately upon the effectiveness of the merger expressly assume in writing pursuant to an agreement, promptly after in form and substance satisfactory to Agent and Lenders, all of the execution thereof;
Obligations and the Financing Agreements and execute and deliver such other agreements, documents and instruments as Agent or Lenders may request in connection therewith; (v) the issuance surviving entity shall, immediately before and sale by Borrower immediately after giving effect to such transaction or series of Capital Stock transactions, have a consolidated net worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in accordance connection with or in respect of such transaction or series of transactions) equal to or greater than the terms consolidated net worth of Pamida immediately prior to such transaction or series of transactions; (vi) each of Guarantors shall ratify and confirm that their respective guarantees of the Plan Obligations and, as to Holdings, its obligations under the Pledge and Security Agreement by Holdings in favor of Agent and Lenders, shall apply to the issuance Obligations as assumed by such surviving entity; (vii) all of the capital stock of Pamida or such surviving entity shall be pledged to the same extent as provided herein and sale in the Pledge and Security Agreement by Holdings in favor of Agent and Lenders; and (viii) neither Pamida nor any Subsidiary would thereupon become obligated with respect to any Indebtedness, nor any of its property become subject to any lien, unless Pamida or such Subsidiary could incur such Indebtedness or create such lien hereunder; or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any stock or Indebtedness to any other Person or any of their respective properties or assets to any other Person, except for:
(i) sales of Inventory in the ordinary course of business,
(ii) sales of worn-out or obsolete equipment,
(iii) sales of specific fixed assets pursuant to a Sale-Leaseback Transaction permitted under Section 7.5(i) hereof and sales of specific fixed assets (other than the Collateral) pursuant to any other Sale-Leaseback Transaction, provided, that, the Indebtedness of a Borrower or Guarantor arising pursuant to such other Sale-Leaseback Transaction is otherwise permitted hereunder,
(iv) sales of Capital Stock equipment in a manner and amounts consistent with Borrowers' current practices as of Borrower or Guarantor after the date hereofhereof (other than as permitted under clause (v) below), provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 aggregate 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 Guarantor from such salebook value of any equipment sold in any fiscal year shall not exceed $1,500,000, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 and after giving effect thereto, no 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 (C) at the option of Agent or Lenders, any net cash proceeds received by Borrowers pursuant thereto shall be continuing;paid to Agent for application to the Obligations, or
(viv) sales or other dispositions by a Borrower of assets in connection with the issuance closing or sale of Capital Stock a retail store location of such Borrower or Guarantor consisting in the ordinary course of common stock pursuant 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 a stock option plan or 401(k) plan the operations of Borrower or Guarantor for the benefit of its employees, directors and consultants, 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 no event any calendar year, such Borrower shall not have closed or sold retail store locations accounting for more than ten (10%) percent of all sales of such Borrower or Guarantor be -------- ---- required to issuein the immediately preceding twelve (12) month period, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower Agent shall give Lender 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 material terms parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of such stock option plan payment thereof and such other information with respect thereto as Lender Agent may reasonably request,, (C) 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, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arm's length transaction, and (E) any and all net 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, for the ratable benefit of Lenders, in accordance with the terms of this Agreement either, at Agent's option, for application to the Obligations in accordance with the 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) or to be held by Agent as cash collateral for the Obligations on terms and conditions acceptable to Agent; or
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Pamida Inc /De/), Loan and Security Agreement (Pamida Holdings Corp/De/)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly.,
(a) merge into or with or consolidate with or amalgamate with any other Person or permit any other Person to merge into or with or consolidate with it; or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales 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 Borrower,
(iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;occurred,
(viiv) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock (or options or warrants to purchase such common stock) pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultantsconsultants as compensation or otherwise, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and and; or
(Bv) the sale by Borrower of the Real Property consisting of vacant land currently owned by Borrower to be subject to the Mortgage which land is adjacent to the facility of Borrower in Freehold, New Jersey (referred to as Xxx 0, Xxxxx 00 on the Freehold Township Tax Map), provided, that, (A) as to such sale each of the following conditions is satisfied as determined by Lender:
(1) Lender shall give Lender have received not less than ten (10) days' prior written notice of the material terms proposed sale by Borrower of such stock option plan land, which notice shall specify the parties to such sale, the purchase price and manner of payment thereof and such other information with respect thereto as Lender may reasonably request,
, (c2) wind up, liquidate or dissolve; or
not less than eighty (d80%) agree to do any percent of the foregoing.consideration received from such sale shall be in the form of cash received by Borrower on the effective date of the transfer of the title to such Real Property, (3) the total amount of the consideration payable to Borrower in cash or other immediately available funds in consideration of such sale at the time of the transfer of title thereof shall be in an amount not less than the amount equal to eighty (80%) percent of the fair market value of such Real Property as set forth in the appraisal thereof currently being conducted on behalf of Lender by Xxxxx-Xxxxxx, Inc.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; or
, or (b) sell, assign, lease, transfer, abandon or otherwise dispose of any stock (other than stock of the Borrower), indebtedness or all or substantially all of its assets to any other Person, or (c) form or acquire any subsidiaries, or (d) wind up, liquidate or dissolve or (e) agree to do any of the foregoing. In addition, Borrower shall give Lender at least twenty days prior notice of any disposition of any material portion of its assets. For purposes of greater certainty, nothing contained in this Section 9.7 shall prohibit (i) sales of Inventory in the ordinary course of business,
, (ii) the sale disposition of any Surplus Intellectual Property having a fair market value of no more than $1,500,000 or worn-out or obsolete Equipment or Equipment or Real Estate no longer used in the Bedford Real Estate; provided, that, -------- ---- as to each such sale, each business of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as no Event of Default or act, condition or event which with notice or passage of time or both would constitute such sales do not involve Equipment and/or Real Estate having an Event of Default, shall exist or have occurred, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than aggregate fair market value in the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts aggregate in excess of the $2,500,000 10,000,000 for all such Equipment and/or Real Estate disposed of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) as fiscal year of the date of such sale and after giving effect thereto, no Event of DefaultBorrower, 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;
(iii) other sales of assets which are made with the sale prior written consent of Lender (in its sole discretion). Notwithstanding the terms of any other Financing Agreements to the contrary, Borrower may allow the lapse or termination of any Surplus Intellectual Property if it reasonably determines the cost of maintaining the rights with respect thereto materially exceeds the likely value thereof and it notifies Lender of that fact at least thirty (30) days prior to such lapse or termination and Lender shall, from time to time, execute documents reasonably requested by Borrower to effect the release of any Equipment or Real liens on Surplus Intellectual Property having a fair market value of up to $1,500,000 (other than in the Bedford Real Estate), provided, that, as to any such sale each -------- ---- aggregate throughout the course of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceedsthis Agreement) which it is anticipated will be payable being simultaneously sold pursuant hereto if satisfactory provisions are made to Borrower with respect to such sale, assure that the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoingLender.
Appears in 1 contract
Samples: Loan and Security Agreement (Chiquita Brands International Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor Credit Parties shall not, and shall not permit any Subsidiary to, directly or indirectly.,
(a) merge into or with consolidate or consolidate amalgamate with any other Person or permit any other Person to merge into or with or consolidate with itit (except that any Credit Party (other than the Parent) may be merged into, consolidated with, or amalgamated with any other Credit Party and any wholly-owned Subsidiary of any Credit Party may be merged into such Credit Party); or
(b) sell, assign, issue, lease, 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 disposition of obsolete or worn-out Equipment (other than Rolling Stock) in the ordinary course of business, (iii) the issuance and sale by Parent of any Capital Stock of Parent after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: provided that (A) Lender except for issuances and sales pursuant to Parent’s employee benefit plans, each Administrative Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorParent, 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 Guarantor Parent from such sale, (B) Borrower or Guarantor 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, unless otherwise permitted in Section 8.11 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 include any limitation on the right of Borrower Parent or any other Credit Party to request or receive Loans or Revolving Loans, Revolving Letter of Credit Accommodations or the right of Parent or any other Credit Party 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 Credit Parties with the Agents or Guarantor with Lender Lenders or are more restrictive or burdensome to Borrower or Guarantor Credit Parties than the terms of any Capital Stock in effect on the date hereof, hereof and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, thatoccurred, (Aiv) leases of real or personal property in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result the ordinary course of business in a Change of Control or other Event of Default accordance with past practice and in accordance with the Financing Agreements; and (Bv) Borrower shall give Lender prior written notice other Asset Sales not to exceed $10.0 million in any twelve-month period or $25.0 million in the aggregate; provided that the consideration received in any such Asset Sale is at least 80% in the form of cash and Cash Equivalents (except for up to an aggregate of $10.0 million of Net Cash Proceeds from the material terms sale of any property set forth on Schedule 9.7(b) (for so long as such stock option plan property continues not to be used in the Credit Parties’ continuing operations), in which case the consideration must consist of at least 65% in the form of cash and such other information with respect thereto as Lender may reasonably request,Cash Equivalents);
(c) wind up, liquidate or dissolvedissolve (except in the case of the Inactive Subsidiaries); or
(d) agree to do any of the foregoing. To the extent any Collateral is sold as permitted by this Section 9.7, such Collateral (unless sold to Parent or a Subsidiary of Parent) shall be sold free and clear of the Liens created by the Financing Agreements, and each Collateral Agent shall take all actions they deem appropriate in order to effect the foregoing.
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; 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 of any of the Bedford Real Estate; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed issuance and sale by any Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation Capital Stock of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, ; provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by Borrower or Guarantorsuch 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 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, unless except as otherwise permitted in Section 8.11 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 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 Borrower or Guarantor Borrowers with Lender 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) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;occurred,
(viiii) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to a an employee stock option or grant, employee stock purchase plan or similar equity plan or 401(k) plan plans 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 option plan plans or 401(k) plan plans which would result in a Change of Control or other Event of Default Default, and
(iv) sales or other dispositions by any Borrower of assets in connection with the closing or sale of any one or more retail store locations of such Borrower in the ordinary course of such Borrower's business which consist of leasehold interests in the premises of such store, the Inventory, 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, the number of retail store locations closed or sold by Borrowers from and after the Closing Date (excluding for the purposes hereof retail store locations that Borrowers are in the process of closing as of the Closing Date) minus the number of retail stores opened by Borrowers from and after the Closing Date, shall not exceed the amount equal to fifteen (15%) percent of the number of store locations of Borrowers as of the day immediately preceding the Closing Date, but in no event shall the aggregate amount of all sales at all of the store locations closed or sold by Borrowers during the term of this Agreement have been more than $200,000,000, (B) Borrower Agent shall give Lender 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 material terms parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of such stock option plan payment thereof and such other information with respect thereto as Lender Agent may reasonably request,, (C) 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, (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; or
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. No Borrower and ------------------------------------------------------- Guarantor shall, nor shall not, and shall not it permit any Subsidiary of its Subsidiaries 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 for a merger of All into Borrower Agent and, subject to Lender's prior written consent (not to be unreasonably withheld or delayed), a merger or any Domestic Subsidiary into Borrower Agent (in all cases with Borrower Agent as the surviving corporation); 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender for application to the principal payments becoming due on the Term Loan in the inverse order of their maturity, provided, that if no Event of Default has occurred and is continuing, such proceeds may instead be used to purchase replacement Equipment of at least equal value, and (B) such sales do not involve Equipment having an aggregate (for all Borrowers) fair market value in excess of One Hundred Thousand Dollars ($100,000) for all such Equipment disposed of in any fiscal year of Borrowers; (iii) the issuance and sale by any Borrower of any Capital Stock of such Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsuch 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 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, unless otherwise permitted in Section 8.11 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 include any limitation on 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 such 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, (D) except as Lender may otherwise agree in writing, all of the proceeds from any of such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender Lender, for the benefit of Lender, for application to the Obligations in such order and manner as Lender may determine accordance with the terms of Section 6.4 hereof, 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(viiv) the issuance and sale by Borrower Agent of Capital Stock the stock of Borrower SimpleDevices, Inc., or Guarantor consisting the sale by SimpleDevices, Inc. of common stock pursuant its assets or the merger or consolidation of SimpleDevices, Inc. with another Person, provided that except as Lender may otherwise agree in writing, all of the proceeds of such transaction payable to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employeesany Borrower shall be paid to Lender, directors for the benefit of Lender, for application to the Obligations in accordance with the terms of Section 6.4 hereof, and consultantsprovided further, provided, that, (A) in that no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default has occurred and (B) Borrower shall give Lender prior written notice of the material is continuing and any such transaction be upon fair and reasonable terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,no less favorable to Borrowers than Borrowers would obtain in a comparable arm's length transaction;
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and 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; 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales 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 Borrower, (iii) exclusive and non-exclusive licenses of Intellectual Property granted by Borrower to Persons in the Bedford Real Estateordinary course of business; provided, that, -------- ---- as in the case of each exclusive license granted by Borrower to each such saleany Person, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertylicense, which notice shall set forth in reasonable detail satisfactory to Lender, specify the parties to such sale, name of the purchase price licensee and the manner terms of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may requestLicense, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed all agreements, documents and instruments evidencing or otherwise related to such license agreementand (C) no Default or Event of Default shall exist or have occurred and be continuing, promptly after the execution thereof;
and (viv) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, ; provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten three (103) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereofLender, (D) except as Lender may otherwise agree in writing, all of the proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine Revolving Loans (but Borrower shall be entitled to reborrow the principal amount of the Revolving Loans so repaid subject to the terms of this Agreement) and (E) as Borrower shall not issue or sell any Capital Stock of Borrower to Teva after the date hereof unless and until all of the date of such issuance Teva Debt shall have been either fully and sale and after giving effect thereto, no Event of Default finally repaid 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;
(vi) the issuance converted into shares of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,Borrower;
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Impax Laboratories 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; , provided, -------- however, that, so long as no Event of Default exists and is continuing, any ------- Borrower or Guarantor may merge with or into any other Borrower or Guarantor (i) upon at least thirty (30) days advance written notice to Lender, (ii) provided that such Borrowers or Guarantors execute UCC-1 financing statements and any other agreements, documents, guaranties and instruments reasonably requested by Lender whether to protect or continue Lender's interests in and upon the Collateral or otherwise related to the Collateral or the Financing Agreements and (iii) provided that such Borrowers or Guarantors deliver financial and other information as Lender may reasonably request, or
(i) sales of Inventory in the ordinary course of business,
(ii) the disposition of Collateral so long as (A) if an Event of Default exists or has occurred and is continuing, any proceeds are paid to Lender and (B) such dispositions for all Borrowers do not involve Collateral having an aggregate fair market value in excess of $250,000 for all such Collateral disposed of in any fiscal year of Borrowers,
(iii) sales or other dispositions by such Borrower of assets in connection with the closing or sale of any a retail store location of such Borrower in the Bedford Real Estateordinary 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, (A) on the date of, and after giving effect to, any such sale, each in any calendar year, such Borrower shall not have closed or sold retail store locations accounting for more than twenty (20)%) of all sales of such Borrower in the following conditions is satisfied as determined by Lender: immediately preceding twelve (A12) month period, (B) Lender shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default Default, shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Propertyexist, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an arm's length ---- ---- Affiliatetransaction, and (E) any and all net proceeds payable or delivered to Borrowers in respect of the Net Cash Proceeds of any such sale or other disposition shall be paid directly or delivered, or caused to be paid or delivered, to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereofeither, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender at Lender's option, for application to the Obligations in accordance with the terms hereof (except to the extent such order and manner as Lender may determine and proceeds reflect payment in respect of indebtedness secured by a valid security interest in the assets sold, in which case, such proceeds shall be applied to such indebtedness secured thereby).
(Eiv) as the abandonment of any assets no longer deemed necessary to the date conduct of such issuance and sale and after giving effect theretoBorrower's business, no Event as determined by such Borrower's board of Default directors in its business judgment,
(v) except as expressly limited in this Agreement, transfer of assets to any other Borrower or actGuarantor, 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
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employeesany sale, directors and consultantsassignment, providedlease, thattransfer, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control abandonment or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,disposition expressly permitted under Sections 9.9, 9.10, 9.11 or 9.12 hereof, or
(c) wind upform or acquire any subsidiaries except that, liquidate so long as no ------ ---- Event of Default then exists and is continuing, Borrowers may form or dissolve; acquire subsidiaries (i) upon at least thirty (30) days advance written notice to Lender, provided, however, that such notice may be contemporaneous with the -------- ------- execution or acquisition of any such subsidiaries which operate or own assets located solely in the United States Virgin Islands or Puerto Rico, (ii) provided that such new subsidiary or subsidiaries and each Borrower in such transaction execute and deliver to Lender all such UCC-1 financing statements and other agreements, documents, guarantees and instruments as Lender may request, whether to protect or continue Lender's interest in the Collateral or otherwise, (iii) provided that such subsidiaries, at Lender's request, (x) execute this Agreement as a "Borrower" or (y) execute as a "Guarantor" an unlimited guarantee in favor of Lender guaranteeing the Obligations and a general security agreement in favor of Lender granting in favor of Lender a first priority security interest in all assets of such subsidiary and (iv provided that Borrowers and any such subsidiaries deliver such financial or other information as Lender may request, or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; , or
(b) sell, assign, lease, 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 the discontinued consumer products business,
(ii) the disposition of worn-out or obsolete Equipment or Equipment no longer used in the business of Borrower so long as (A) if an Event of Default has occurred and is continuing, any proceeds are paid to Lender and (B) such sales 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 Borrower,
(iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estate; date hereof (other than pursuant to the Warrant or the Registration Agreement), provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: that (A) Lender shall have received not less than ten (10) Business Days' Days prior written notice of written
(iv) the proposed sale issuance by Borrower of such property, which notice shall set forth in reasonable detail satisfactory Capital Stock of Borrower pursuant to Lenderthis Agreement, the parties to such sale, Warrant or the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds Registration Agreement;
(including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (Cv) the Net Cash Proceeds received issuance by Lender on Borrower of Capital Stock of Borrower pursuant to the date of the transfer of ownership existing employee stock option plans, director stock purchase plans or operation of any of such Real Property employee stock bonus plans (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate each is announced based on the Prime Rate in effect on the last day date hereof), whether to existing employees or new employees that receive the benefit of such plans;
(vi) the issuance by Borrower of Capital Stock of Borrower pursuant to the exercise by the holders of the month in which any Class B Cumulative Convertible Preferred Stock, Series D of Borrower of the right to convert such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), preferred stock to common stock of Borrower; provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) make any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities payment in connection with such sales except or as permitted herein, (H) as of the date a result of such 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 exist or have occurred and be continuingconversion;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(ivvii) the grant by Borrower after the date hereof of a non-exclusive license to any person a Person other than an Affiliate for the use of any Intellectual Property consisting of trademarks trademarks, patents or patents owned by Borrowerother intellectual property rights, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: satisfied, (A) at the time of the grant of the license and after giving effect thereto, no Event of Default, Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, Default shall exist or have occurred and be continuing, (B) the rights of the such licensee in the trademarks trademarks, patents or patents other intellectual property subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral AgentLender therein, (C) Lender shall have approved the terms and conditions of such licenses license prior to the execution and delivery of the applicable license agreement, which consent shall not include any limitations be unreasonably withheld or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing delayed and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 hereof, (C) the terms of such Capital Stock, and contain the terms and conditions of the purchase and sale thereof, shall not include any terms that limit the right of 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale approved by Borrower or Guarantor after the date hereof 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 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;Lender; or
(viviii) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information licenses with respect thereto as Lender may reasonably request,to intellectual property listed on Schedule 9.10 hereto; or
(c) form or acquire any Subsidiaries; or
(d) wind up, liquidate or dissolve; or
(de) agree to do any of the foregoing.
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; , or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) such sales 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 and (B) all proceeds are paid to Agent for application to the Obligations in such order and manner as Agent may determine;
(iii) Asset Sales, except as otherwise provided herein, by any Borrower or Guarantor after the date hereof to the extent consented to in writing by Agent and Lenders;
(iv) sales or other dispositions by Huffy of the Bedford Equipment and Real Estate; Property of Huffy currently located at the premises of Huffy at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, the Equipment and Real Property of Huffy currently located at 0000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, the Celina Property, the Real Property subject to the Farmington Lease, the Real Property subject to the Miamisburg Headquarters Lease or the sale or other disposition by HCAC of the Harrisburg Property or the sale by Washington of the Equipment and Real Property of Washington currently located at the premises of Washington at 0000-0000 Xx Xxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, provided, that, -------- ---- as to each and all such sale, each of the following conditions is satisfied as determined by Lender: sales,
(A) Lender Agent shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to LenderAgent, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender Agent may request, ,
(B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default Default, shall exist or have occurred and be continuing;occurred,
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliatearm's length transaction, and
(ED) any and all Net Available Proceeds payable or delivered to any Borrower or Guarantor in respect of the Net Cash Proceeds of any such sale or other disposition shall be paid directly or delivered, or caused to Lender be paid or delivered, to Agent for application to the Obligations in such order and manner as Agent may determine, except to the extent otherwise provided in the Intercreditor Agreement, and to such extent, such amounts shall be applied as a mandatory prepayment in respect of the installments of principal of the paid to Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;,
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof, ; provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- Agent shall have received not less than ten three (103) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsale, which notice shall specify the party selling such Capital Stock, 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, unless otherwise permitted except that such Borrower or Guarantor may pay cash dividends in Section 8.11 hereofrespect of such Capital Stock on terms and conditions and in amounts acceptable to Agent so long as Agent shall have received, in form and substance satisfactory to Agent, an agreement in writing from the holders of such shares of Capital Stock with respect to the rights to payment and other rights of the holder of such shares, (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 include any limitation on the right of any Borrower or Guarantor 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 any Borrower or Guarantor with Lender Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock of such Borrower or Guarantor in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(vi) the licensing by Huffy Brands of Intellectual Property owned by it to any Borrower, provided, that, as to any such license: (A) any rights of such Borrower shall be subject to the rights of Agent and Lenders in such Intellectual Property (including the rights of Agent and Lenders to use such Intellectual Property as provided in Section 10.2 hereof), (B) such license shall not impair, hinder or otherwise adversely affect the rights of Agent and Lenders with respect to such Intellectual Property, (C) such license as to any Borrower shall be consistent with the reasonable requirements of such Borrower in the ordinary course of its business and on terms no less favorable to such Borrower then such Borrower would otherwise be able to obtain from any person which is not an Affiliate (assuming for this purpose that such other person were the owner of the Intellectual Property subject to such license), (D) no Borrower shall make or be required to make any payments in cash or other immediately available funds or other property to Huffy Brands pursuant to such license arrangements and (E) all Indebtedness and other obligations of any Borrower to Huffy Brands arising in connection with such licensing arrangements shall be subject and subordinate in right of payment to the prior indefeasible payment and satisfaction in full of the Obligation;
(vii) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to a stock option plan (including, without limitation, the Amended and Restated 1989 Employee Stock Option Purchase Plan which became effective as of January 1, 1999) or 401(k) plan plans 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 option plan plans or 401(k) plan plans which would result in a Change of Control or other Event of Default and Default;
(Bviii) Borrower shall give Lender prior written notice the transfer by Huffy Brands of the material terms Intellectual Property owned by Huffy Brands to the Borrower that licenses such Intellectual Property as of the date hereof from Huffy Brands on or about the date of a Business Unit Sale of the assets of such stock option plan Borrower, so long as such Business Unit Sale has been consented to by Agent and the Intellectual Property so transferred shall remain subject to the security interest and lien of Agent (such other information with respect thereto that the security interest and lien of Agent shall continue in the Intellectual Property as Lender so transferred and owned by such Borrower until such security interest and lien may reasonably request,be released pursuant to such Business Unit Sale subject to such terms and conditions as Agent may agree);
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and 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; or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of the Collateral to any other Person, except for (i) sales of Inventory in the ordinary course of business,
, (ii) the disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales do not involve Equipment having an aggregate fair market value in excess of $200,000.00 for all such Equipment disposed of in any fiscal year of Borrower and (iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; providedPROVIDED, thatTHAT, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to 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 proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine determine, 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Streicher Mobile Fueling 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; or
, or (b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its properties or assets to any other Person (except for (i) sales or other dispositions by a Borrower or its Subsidiaries of Inventory assets in the ordinary course of business,
(ii) the sale business of any such Borrower or Subsidiary which consist of the Bedford Equipment or Real EstateProperty; provided, that, -------- ---- as to each and all such salesales, each (A) at least eighty (80%) percent of the following conditions consideration received from such sale is satisfied in the form of cash or Cash Equivalents, (B) the net cash proceeds from such sale or other disposition are first used to repay any Indebtedness secured by the property so sold or otherwise disposed of and any net cash proceeds thereafter are applied to make an investment, capital expenditure or other expenditure which is related to the business of such Borrower as determined by Lender: it is conducted on the date hereof and is otherwise permitted hereunder, within two hundred seventy (A270) days of such sale or other disposition, provided, that, such Borrower shall not be required to make such investment, capital expenditure or other expenditure with the proceeds of such sale or other disposition to the extent of such proceeds do not exceed $5,000,000 in the aggregate, (C) Lender shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender may reasonably request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, and (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
occurred, (ii) sales of Inventory in the ordinary course of business, (iii) the sale by Borrower disposition of any worn-out or obsolete Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment no longer used or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan useful in the inverse order business of maturitya Borrower or its Subsidiaries, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant sale of a helicopter by Borrower Doe Run after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (A) at the time of the grant of the license and after giving effect thereto, no Event of Defaultdescribed on Schedule 6.5 hereto), 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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
, or (d) agree to do any of the foregoing.
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 Foreign Subsidiary may merge into or with or consolidate into any other Foreign Subsidiary, provided, THAT, each of the following conditions is satisfied as determined by Lender in good faith: (i) Lender shall have received not less than thirty (30) days prior written notice of the intention of the parties, to so merge and such information with respect thereto as Lender may reasonably request, (ii) as of the effective date of the merger and after giving effect thereto, no Event of Default or act, condition or event which with notice of passage of time or both is reasonably likely in the good faith judgment of Lender to constitute an Event of Default, shall exist or have occurred and be continuing, (iii) Lender shall have received originals of the shares of the stock certificates representing sixty-five (65%) percent of the issued and outstanding shares of Capital Stock of the Foreign Subsidiary which is the survivor of such merger or consolidation, together with stock powers duly executed in blank with respect thereto and such opinions of counsel and such other documentation as Lender shall require, and (iv) 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 the appropriate Governmental Authority; or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets (including, without limitation, any 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 worn-out or obsolete Equipment or Equipment no longer used 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) the Bedford sale or other disposition of Equipment not subject to Section 9.7(b)(ii) above 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 $50,000 for all such Equipment disposed of in any fiscal year of Borrowers, and (C) such sales do not have an adverse effect on the Real Estate; providedProperty or other Equipment or the operations or business of any Borrower or Guarantor;
(iv) the issuance and sale by Play By Play of its Capital Stock after the date hereof, thatPROVIDED, -------- ---- as to each such saleTHAT, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten five (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (105) Business Days' prior written notice of such issuance and sale by Borrower or GuarantorPlay By Play, which notice shall specify the parties to whom such shares are to be soldsold (if issued in a private offering), the anticipated 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 Guarantor Play By Play from such sale, (B) Borrower or Guarantor Play By Play 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 8.11 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 Borrower Play By Play 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) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) form or acquire any Subsidiaries other than those listed on the Information Certificate;
(d) wind up, liquidate or dissolve; or
(de) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Play by Play Toys & Novelties Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Without prior written approval from Lender, Borrower and ------------------------------------------------------- Guarantor shall not, and 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; or
(b) sell, assign, lease, 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 disposition of worn out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales 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 and (iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 include any limitation-on the right of Borrower to request or receive Loans or Letter the right of Credit Accommodations or 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 or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness related to Assigned Leases to any other Person or any of its assets to any other Person, except for (i) dispositions of Leases (other than Assigned Leases) in connection with a Securitization, (ii) non-recourse sales of Leases (other than Assigned Leases) to a third party which is not an Affiliate of the Borrower, (iii) assignments or transfers of Leases (other than Assigned Leases) in connection with an Approved Financing Transaction, (iv) sales of Inventory in the ordinary course of business,
, and (iiv) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 include any limitation on the right of Borrower to request or receive Loans or Letter the right of Credit Accommodations or 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 or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred; or
(c) form any Subsidiaries other than bankruptcy remote Subsidiaries formed in connection with a Securitization;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(cd) wind up, liquidate or dissolve; or
(de) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. No Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary toshall, 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; , or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any 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 businessbusiness or consignments of Inventory permitted hereunder,
(ii) the disposition of worn-out or obsolete Equipment, so long as (A) if an Event of Default exists or has occurred and is continuing, any proceeds are paid to Lender and (B) such sales 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, but excluding for purposes of such $500,000 limitation, the value of any Equipment that was previously used in LFI's manufacturing facility in Baltimore, Maryland and is disposed of in any such fiscal year,
(iii) sales or other dispositions by a Borrower of assets in connection with the closing or sale of any a retail store location of such Borrower in the Bedford Real Estateordinary course of Borrowers' 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, (A) on the date of, and after giving effect to, any such sale, each Borrowers shall not have closed or sold retail store locations accounting for more than twenty-five (25%) of all retail store sales of Borrowers in the following conditions is satisfied as determined by Lender: immediately preceding twelve (A12) month period, (B) Lender shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default Default, shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliatearm's length transaction, and (E) any and all net proceeds payable or delivered to a Borrower in respect of the Net Cash Proceeds of any such sale or other disposition shall be paid directly or delivered, or caused to be paid or delivered, to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereofeither, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender at Lender's option, for application to the Obligations in accordance with the terms hereof (except to the extent such order and manner 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) or to be held by Lender as Lender may determine 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor cash collateral for the benefit of its employees, directors Obligations on terms and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required conditions acceptable to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,Lender; or
(c) form or acquire any subsidiaries, or
(d) wind up, liquidate or dissolve; dissolve (except for dissolution of any inactive Guarantors upon not less than twenty (20) days prior written notice to Lender), or
(de) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. No Borrower and ------------------------------------------------------- Guarantor shall, nor shall not, and shall not it permit any Subsidiary of its Subsidiaries to (and neither Agent nor any Lender authorizes 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; or;
(b) sell, assign, lease, 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, including dispositions of worn-out Inventory and rentals of Rental Inventory (which have been reported to Agent as being Rental Inventory) to consumers in the ordinary course of business,
(ii) the sale or other disposition of Equipment and other miscellaneous items of personal property not comprising Inventory in the event of a store closure, so long as any proceeds are paid to Agent, for the ratable benefit of Lenders, for application to the Bedford Real EstateObligations (in the manner set forth in this Agreement),
(iii) the disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Agent, for the ratable benefit of Lenders, for application to the Obligations (in the manner set forth in this Agreement) if no Event of Default exists, and (B) such sales do not involve Equipment having an aggregate (for all Borrowers) fair market value in excess of Five Hundred Thousand Dollars ($500,000) for all such Equipment disposed of in any fiscal year of Borrowers,
(iv) the issuance and sale by any Borrower of Capital Stock of such Borrower after the date hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsuch Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the 71 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, unless otherwise permitted in Section 8.11 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 include any limitation on the right of such Borrower to request or receive Loans or Letter of Credit Accommodations or the right of such 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 such Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereofAgent and Lenders, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;occurred,
(v) the termination or expiration of any contracts, other than Material Contracts,
(vi) the issuance termination or expiration of Capital Stock any Material Contracts so long as Borrower shall have given Agent thirty (30) days prior written notice thereof,
(vii) the sale, franchising or closing of Borrower stores (whether by a transfer of an interest in a joint venture or Guarantor consisting otherwise) located in Ireland, the United Kingdom, Mexico or Singapore so long as the proceeds of common stock pursuant such transactions are immediately remitted to Agent for application to the then outstanding Obligations, if any,
(viii) the disposition of any assets resulting from eminent domain action or a stock option plan casualty loss to the extent that (A) any other provisions with respect to such events contained in this Agreement are fully complied with and (B) any proceeds or 401(k) plan of Borrower or Guarantor other amounts received are immediately paid to Agent, for the benefit of its employeesLenders, directors for application to the Obligations (in the manner set forth in this Agreement),
(ix) the sale and consultantsleaseback of Equipment to the extent such transaction otherwise complies with the terms of this Agreement, including, without limitation, Section 9.9(b) hereof,
(x) the sale of any of the Real Property so long as: (A) such transaction is entered into at arm's length, (B) such Real Property is sold for fair market value, and (C) the first $20,000,000 in Net Proceeds thereof plus 50% of any Net Proceeds thereof in excess of $20,000,000 are used to repay the then outstanding Obligations until paid in full; provided, that, if no JPMC Indebtedness is then outstanding, 100% of such Net Proceeds shall be applied to any then outstanding Obligations; and provided, that, no sale/leaseback of Real Property shall be permitted hereunder except for the sale/leaseback (Aas previously agreed by Borrower) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms Real Property on Xxxxxx Street in Seattle, Washington, for the sales price of approximately One Million Dollars ($1,000,000); and
(xi) the surrender by MTS of the Surrender Insurance Policies to the issuers of such stock option plan and such other information with respect thereto as Lender may reasonably request,policies for their cash surrender value.
(c) wind up, liquidate or dissolvedissolve except that any Obligor may be wound up, liquidated or dissolved at any time provided that (i) such Obligor's assets remaining after the satisfaction of its liabilities are conveyed to another Obligor or to a Borrower and (ii) the proceeds of such transactions, if any, are immediately remitted to Agent for application to the then outstanding Obligations, if any; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and 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; 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales 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 Borrower and (iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to 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 proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine determine, 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor Each Loan Party 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 itit except that any wholly-owned domestic Subsidiary of the Parent may merge with and into or consolidate with any other wholly-owned Domestic Subsidiary of the Parent; orprovided, that each of the following conditions is satisfied: (i) the Agent shall have received not less than ten (10) Business Days’ (or such shorter period of time as agreed to by the Agent) prior written notice of the intention of 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 (to the extent there is a change in the location of such assets), and the material agreements and documents relating to such merger or consolidation; (ii) the surviving corporation shall expressly confirm, ratify and assume the Obligations and the Financing Agreements to which either Subsidiary is a party in writing, in form and substance reasonably satisfactory to the Agent, and the Loan Parties shall execute and deliver such other agreements, documents and instruments as the Agent may reasonably request in connection therewith; and (iii) if a Borrower is a party to such merger or consolidation, then such Borrower shall be the surviving corporation of such merger or consolidation;
(b) sell, issue, assign, lease, license, transfer or otherwise dispose of any Capital Stock or Indebtedness (including by governmental condemnation or taking) to any other Person or any of its assets or property to any other Person except for
(i) sales of Inventory in the ordinary course of business,;
(ii) the sale of any of the Bedford Real Estate; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all disposition of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, Equipment so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest sales or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts dispositions do not involve Equipment having an aggregate fair market value in excess of the $2,500,000 1,000,000 for all such Equipment disposed of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) as fiscal year of the date of such sale and after giving effect thereto, no Event of Default, Company 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 continuingas the Agent may otherwise agree;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice the sale or other disposition of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the worn-out or obsolete Equipment or Real Property to be sold, Equipment no longer used or useful in the purchase price and the manner business of payment thereof, the total amount of all cash any Loan Party or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date trade-in of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order ordinary course of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuingbusiness;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower any Loan Party of Capital Stock in accordance with the terms of the Plan such Loan Party to a Loan Party and (B) the issuance and sale by Borrower or Guarantor the Parent of Capital Stock of Borrower or Guarantor after the date hereof, Parent; provided, that, (A) as to that all of the proceeds of any sale and issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 hereof, (C) by 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof Parent shall be paid to Lender the Agent or the Control Agent to the extent required by, and for application to in accordance with, the Obligations in such order terms hereof and manner as Lender may determine and (E) as the terms of the date of such issuance and sale and after giving effect thereto, no Event of Default ABL Intercreditor Agreement;
(v) Recovery Events (including any governmental condemnation or act, condition or event taking which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuingdoes not result in a condemnation award);
(vi) the issuance sale, lease or transfer of Capital Stock property or assets between or among any Borrower and any Guarantor (other than the Parent);
(vii) the sale of Borrower defaulted receivables (other than Eligible Accounts) in the ordinary course of business not to exceed $500,000 in the aggregate in any fiscal year;
(viii) the sale or Guarantor consisting other disposition of common stock pursuant real property so long as such sales or other dispositions do not involve real property having an aggregate fair market value in excess of $2,000,000 for all such real property disposed of in any fiscal year of the Company or as the Agent may otherwise agree; and
(ix) the sale, lease or transfer of property or assets (other than Priority Collateral) not to a stock option plan or 401(k) plan of Borrower or Guarantor for exceed $500,000 in the benefit of its employees, directors and consultants, aggregate in any fiscal year. provided, that, that (A) with respect to clauses (i), (ii) and (ix) above, in no event shall Borrower each case at least 75% of the consideration received therefor by such Loan Party or Guarantor be -------- ---- required to issueany such Subsidiary is in the form of cash or Cash Equivalents, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower with respect to clauses (ii) and (ix) above, in each case no Default or Event of Default then exists or shall give Lender prior written notice result from such asset disposition; provided, further, that with respect to sales of assets permitted hereunder only, the Agent shall be entitled, without the consent of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,Required Lenders, to release the Agent’s (or the Control Agent’s) liens relating to the particular assets sold;
(c) wind up, liquidate or dissolve except that any Loan Party (other than the Parent or a Borrower) 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 Loan Party free and clear of any liens, restrictions or encumbrances other than the security interest and liens of the Agent and the Control Agent (and the Agent shall have received such evidence thereof as the Agent may reasonably require) and the Agent shall have received such deeds, assignments or other agreements as the Agent may reasonably request to evidence and confirm the transfer of such assets of such Guarantor to such Loan Party and (ii) 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; or
(d) agree to do any of the foregoing, other than agreements entered into to effect a sale by the Sponsor of the business of the Loan Parties and their Subsidiaries; provided, that any such agreement shall contemplate the termination of the facilities hereunder and the repayment of all Obligations upon the consummation of such sale.
Appears in 1 contract
Samples: Abl Loan and Security Agreement (U.S. Silica Holdings, Inc.)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly.,
(a) merge into or with or consolidate with or amalgamate with any other Person or permit any other Person to merge into or with or consolidate with it; or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales 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 Borrower,
(iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;occurred,
(viiv) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock (or options or warrants to purchase such common stock) pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultantsconsultants as compensation or otherwise, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and and; or
(Bv) the sale by Borrower of the Real Property consisting of vacant land currently owned by Borrower to be subject to the Mortgage which land is adjacent to the facility of Borrower in Freehold, New Jersey (referred to as Lxx 0, Xxxxx 00 on the Freehold Township Tax Map), provided, that, (A) as to such sale each of the following conditions is satisfied as determined by Lender:
(1) Lender shall give Lender have received not less than ten (10) days’ prior written notice of the material terms proposed sale by Borrower of such stock option plan land, which notice shall specify the parties to such sale, the purchase price and manner of payment thereof and such other information with respect thereto as Lender may reasonably request,, (2) not less than eighty (80%) percent of the consideration received from such sale shall be in the form of cash received by Borrower on the effective date of the transfer of the title to such Real Property, (3) the total amount of the consideration payable to Borrower in cash or other immediately available funds in consideration of such sale at the time of the transfer of title thereof shall be in an amount not less than the amount equal to eighty (80%) percent of the fair market value of such Real Property as set forth in the appraisal thereof currently being conducted on behalf of Lender by Dxxxx-Xxxxxx, Inc. (4) all proceeds from such sale shall be paid directly by the purchaser to Lender, (5) if 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, twenty-five (25%) percent of the net cash proceeds from such sale shall be applied to the installments of principal in respect of the Term Loan in the inverse order of maturity as a mandatory prepayment thereof and the remaining balance shall be applied to the Revolving Loans, and if an 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, such proceeds shall be applied to the Obligations in such order and manner as Lender may determine, (6) such sale shall be on commercially reasonable terms in a bona fide arms’ length transaction with a person that is not an Affiliate, (7) 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 or both would constitute an Event of Default shall exist or have occurred and (B) so long as each of the conditions set forth in clause (A) are satisfied as determined by Lender, Lender shall, upon Borrower’s request and at Borrower’s expense, execute and deliver to Borrower a discharge and satisfaction of the Mortgage with respect to such Real Property, in form and substance satisfactory to Lender, such discharge and satisfaction to be effective only upon the consummation of such sale and the satisfaction of each of the conditions set forth in clause (A) above; or
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Inverness Medical Innovations Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to (and no Agent nor any Lender authorizes 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 itit if such merger or consolidation results in a Change of Control; orprovided, that any Obligor may merge into another Obligor or the Borrower (provided that the Borrower is the surviving entity after giving effect thereto) or may dissolve or cease doing business so long as the assets of such Obligor are transferred to the Borrower or another Obligor;
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Administrative Agent and (B) such sales do not involve Equipment having an aggregate fair market value in excess of $2,000,000 for all such Equipment disposed of in any fiscal year of Borrower;
(iii) sales or other dispositions by Borrower of assets in connection with the closing or sale of any a retail store location of Borrower in the Bedford Real Estateordinary course of 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, (A) on the date of, and after giving effect to, any such sale, each in any calendar year, Borrower shall not have closed or sold retail store locations accounting for more than seven and one-half (7 1/2%) percent of all sales of Borrower in the following conditions is satisfied as determined by Lender: immediately preceding twelve (A12) Lender month period, (B) Administrative Agent shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to LenderAdministrative Agent, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender Administrative Agent may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default Default, shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Propertyoccurred, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliatearm’s length transaction, and (E) any and all net proceeds payable or delivered to respect of the Net Cash Proceeds of any such sale or other disposition shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) as of the date of such sale and after giving effect thereto, no Event of Defaultor delivered, or actcaused to be paid or delivered, 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) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock Administrative Agent in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereofeither, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender at Administrative Agent’s option, for application to the Obligations in accordance with the terms hereof (except to the extent such order 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) or to be held by Administrative Agent as cash collateral for the Obligations on terms and manner conditions acceptable to Administrative Agent;
(iv) sales, assignments, leases, transfers or other dispositions of assets not to exceed an aggregate fair market value of $10,000,000 for all such assets in any fiscal year of Borrower;
(v) other sales, assignments, leases, transfers or other dispositions of assets not otherwise permitted hereunder so long as Lender may determine Excess Availability shall not be less than thirty percent (30%) of the lesser of (A) the amount of the Loans available to Borrower as of such time based on the formula set forth in Section 2.1(a) hereof, subject to the sublimits and Availability Reserves from time to time established by Agents hereunder and (EB) as of the date of such issuance and sale Maximum Credit calculated on a pro forma basis both before and after giving effect theretoto such disposition; provided, no Event that the aggregate book value of Default Inventory that may be subject to such sales, assignments, leases, transfers or act, condition or event which with notice or passage other dispositions shall not exceed $100,000,000 in the aggregate during the term of time or both would constitute an Event of Default shall exist or have occurred and be continuingthis Agreement;
(vi) the sales and issuance of Capital Stock by the Subsidiaries of Borrower to Borrower or Guarantor consisting such other wholly owned Subsidiaries and by Borrower or any other Obligor (that is not a Subsidiary of common stock pursuant Borrower) to a stock option plan Holdings;
(vii) any sale, release or 401(k) plan other disposition of any interest of Borrower in the Studio Gear trademark or Guarantor for the benefit any other intellectual property rights with respect to that brand; or
(viii) sales, assignments, leases, transfers or other dispositions of its employees, directors and consultants, provided, that, assets from (A) in no event shall Borrower or Guarantor any Obligor to Borrower or any other Obligor, (B) any Subsidiary that is not an Obligor to Borrower or any other Subsidiary and (C) Borrower or any Obligor to a Subsidiary that is not an Obligor; provided, that with respect to this clause (C), (1) the conditions set forth in Section 9.10(f)(i)-(iii) shall be -------- ---- satisfied with respect to any such disposition and (2) to the extent any intellectual property which is required to issuesell Eligible Inventory is subject to such disposition, then either the Administrative Agent shall retain a lien on such intellectual property or the Subsidiary holding such intellectual property shall grant to Administrative Agent a non-exclusive royalty free license (upon terms reasonably acceptable to the Administrative Agent) to use such intellectual property to sell Eligible Inventory during the continuation of an Event of Default;
(c) form or acquire any subsidiaries except that Borrower and its Subsidiaries may (i) acquire Subsidiaries in accordance with Section 9.10(f) and (ii) form additional Subsidiaries; provided, that to the extent any such acquired or Guarantor issueformed Subsidiary is organized within the United States (and subject to the limitations set forth in Section 5.2(d)), Capital Stock at the time that such Person becomes a Subsidiary, and promptly thereafter (and in any event within ten (10) days), Borrower shall, and shall cause such Subsidiary to: (A) to the extent such Subsidiary is not a Subsidiary described under clause (y) of Section 5.2(d), become an Obligor by executing and delivering to the Administrative Agent the following documents, which documents shall, for clarity, incorporate as to such Subsidiary, all representations and warranties made by the Borrower under this Agreement and all affirmative and negative covenants applicable to the Borrower under this Agreement: (1) a guaranty of the Obligations in favor of the Administrative Agent, for the ratable benefit of the Lenders, (2) a security agreement, pursuant to which such stock option plan or 401(kSubsidiary grants a lien to the Collateral Agent, for the ratable benefit of the Lenders, on substantially all the assets of such Subsidiary to secure such guaranty and the Obligations, on terms and conditions consistent with the Borrower’s grant of liens under this Agreement and (3) plan which would result documents of the type referred to in a Change clauses (a) and (c) of Control or Section 4.1, together with any other Event documents required by the terms of Default the guaranty and security agreement referred to in clauses (1) and (2) above, and (B) Borrower shall give Lender prior written notice pledge the Capital Stock of such Subsidiary (subject to Section 5.2(d) to the extent such Subsidiary is described therein) to the Administrative Agent, for the ratable benefit of the material Lenders, to secure the Obligations; in each case, in form, content and scope reasonably satisfactory to the Administrative Agent (it being understood and agreed that, with respect to any Person that was an Unrestricted Subsidiary but ceases to satisfy the criteria therefor, at the time that such Person ceases to so satisfy, and promptly thereafter (and in any event within ten (10) days), Borrower shall, and shall cause such Subsidiary to, become an Obligor, pledge the Capital Stock of such Subsidiary, and otherwise comply with the terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolvethis Section 9.7(c)); or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to, 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; 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 voluntary termination of Swap Agreements to which Borrower or such Subsidiary is a party, and (iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless except as otherwise permitted in Section 8.11 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 include any limitation on the right of Borrower to request or receive Loans or Letter Letters 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 or Guarantor with Lender or are more restrictive or burdensome to 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 proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine or at Lender’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 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;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Except for Permitted Mergers (defined below), Borrower and ------------------------------------------------------- Guarantor shall not, and 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; or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales 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 Borrower and (iii) the issuance and sale by Borrower or any Subsidiary of any Capital Stock of Borrower or such Subsidiary after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) if any of the proceeds of such issuance and sale are not received by Borrower or such Subsidiary, as the case may be, Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor such Subsidiary from such sale, (B) 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, unless otherwise permitted thereof in excess of the payments authorized pursuant to Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. No Borrower and ------------------------------------------------------- Guarantor shall notshall, and shall not permit any Subsidiary 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; or;
(b) sell, assign, lease, 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) 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 by all Borrowers in any Fiscal Year of Borrowers, and
(iii) the Bedford Real Estateissuance of Capital Stock of a Borrower consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of a Borrower for the benefit of its employees, directors and consultants, provided, that, in no event shall any Borrower be required to issue, or shall any Borrower 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,
(iv) sales or other dispositions by a Borrower of assets in connection with the closing or sale of a retail store location of a Borrower in the ordinary course of a Borrower's business, which assets 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 saleclosures of retail stores, each of the following conditions is satisfied as determined by Lender: (A) Lender on the date of, and after giving effect to, any such retail store closure, Borrowers shall not have closed retail store locations accounting for more than $2,000,000 of Consolidated EBITDA in the immediately preceding twelve (12) fiscal month period, and (B) Agent shall have received not less than ten (10) Business Days' Days prior written notice of such closure; and provided further that, as to each and all such sales of retail stores (V) on the proposed date of, and after giving effect to, any such retail store sale by Borrower in any calendar year, Borrowers shall not have sold retail store locations accounting for more than five percent (5%) of all sales of all Borrowers in the immediately preceding twelve (12) fiscal month period, (W) Agent shall have received not less than ten (10) Business Days prior written notice of such propertysale, which notice shall set forth in reasonable detail satisfactory to Lender, Agent the parties to such sale, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender Agent may request, (BX) all as of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership such sale or operation of such Real Property other disposition and after giving effect thereto, no Default or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (FY) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliatearm's length transaction, and (GZ) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) as of the date of such sale and after giving effect thereto, no Event of Default, all net proceeds payable 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;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as delivered to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale or other disposition shall be paid directly or deposited into the Agent Payment Account or, as and when required by SECTION 2.3(d) hereof, paid or delivered to Lender and shall be applied Agent as a mandatory prepayment in respect of the installments of principal of on the Term Loan in the inverse order of maturityLoan, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;and
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor transfer of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) Borrower or Guarantor shall not be required to pay any dividends or repurchase or redeem such Capital Stock or make any other payments Parent in respect thereof, unless otherwise permitted in Section 8.11 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 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 connection with Parent's initial public offering or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;
(vi) the issuance subsequent public offering of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,Parent;
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; orprovided, that, Borrower and Target shall be permitted to consummate the 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) 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) so long as (A) any proceeds are paid to Agent and (B) 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 Borrower; (iii) the Bedford Real Estateissuance and sale by Borrower of Capital Stock of Borrower after the date hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender Lenders or are more restrictive or burdensome to 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 from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender Agent for application to the Obligations in such order and manner as Lender 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 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;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; 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 the business of 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, and
(iii) the Bedford Real Estateissuance and sale by Borrower of Capital Stock of Borrower after the date hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' ’ prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any Table of Contents other payments in respect thereof, unless except as otherwise permitted in Section 8.11 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 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 or Guarantor with Lender Agent and Lenders or are more restrictive or burdensome to 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 from any of the sale and issuance of such issuance and sale by Borrower or Guarantor after the date hereof Capital Stock shall be paid to Lender Agent for application to the Obligations in such order and manner as Lender Agent may determine and may be reborrowed subject to the provisions of Section 2.1, 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;occurred,
(viiv) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a an employee stock option or grant or similar equity plan or 401(k) plan plans of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan plans or 401(k) plan plans which would result in a Change change of Control or other Event of Default and Default,
(Bvii) Borrower shall give Lender prior written notice sale of the material terms of such stock option plan and such other information with respect thereto Tampa Real Property pursuant to the Tampa Sale-Leaseback Transaction as Lender may reasonably request,permitted under Section 9.20;
(c) wind up, liquidate or dissolve; or;
(d) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Reptron Electronics Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; 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 the business of Borrower) 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 Borrower or as Agent may otherwise agree, and
(iii) the Bedford Real Estateissuance and sale by Borrower of Capital Stock of Borrower after the date hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business 66 Days' prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless except as otherwise permitted in Section 8.11 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 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 or Guarantor with Lender Agent and Lenders or are more restrictive or burdensome to 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 from any of the sale and issuance of such issuance and sale by Borrower or Guarantor after the date hereof Capital Stock shall be paid to Lender Agent for application to the Obligations in such order and manner as Lender 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 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;occurred,
(viiv) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a an employee stock option or grant or similar equity plan or 401(k) plan plans of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan plans or 401(k) plan plans which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably requestDefault,
(c) wind up, liquidate or dissolve; or;
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Without -------------------------------------------------------- Lender's prior written consent, no Borrower and ------------------------------------------------------- Guarantor shall, nor shall not, and shall not it permit any Subsidiary 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; or;
(b) sell, assign, lease, 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 disposition of worn-out, obsolete or excess Equipment, and (iii) the issuance and sale by Borrowers of any Capital Stock of Borrowers after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten -------- ---- (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrowers, 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 Guarantor Borrowers from such sale, (B) Borrower or Guarantor Borrowers shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, unless otherwise permitted in Section 8.11 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 include any limitation on the right of Borrower Borrowers to request or receive Revolving 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 Borrower or Guarantor Borrowers with Lender or are more restrictive or burdensome to Borrower or Guarantor Borrowers than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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 Soffe may merge into MJS; or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Agent and (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 Borrower;
(iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise thereof except as permitted in Section 8.11 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 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 or Guarantor with Lender Lenders or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(viiv) the issuance of Capital Stock of Borrower or Guarantor consisting consisting, of common stock pursuant to a stock option plan or plan, 401(k) plan, or incentive stock award plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or plan, 401(k) plan, or incentive stock award plan which would result in a Change of Control or other an Event of Default Default;
(v) sales of Existing Real Property (other than Existing Real Property covered by a Mortgage pursuant to Section 9.18 hereof) and related assets, provided, that, as to each and all of such sales (BA) Borrower Agent shall give Lender have received not less than ten (10) days' prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the material terms parties to such sale, the Existing Real Property to be sold, the purchase price and the manner of such stock option plan payment thereof and such other information with respect thereto as Lender Agent may reasonably request,, (B) such sale shall be on commercially reasonable terms in a bona fide arm's-length transaction with a non-affiliated person, (C) all of the Net Proceeds of any such sale shall be paid either (i) directly to Agent or (ii) to Borrower, provided, that, the entire amount of the Net Proceeds are used to repay the outstanding amount of Loans which amounts may be reborrowed, (D) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, and (E) as of the date of such sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing; and
(vi) dispositions of investments permitted under Section 9.10(b) to the extent the proceeds thereof are used to acquire additional investments permitted under Section 9.10(b).
(c) form or acquire any Subsidiaries other than those listed on the Information Certificate and as permitted in accordance with Section 9.10 hereof, except that Borrower may form MJS and MJS may acquire Soffe and its Subsidiaries;
(d) wind up, liquidate or dissolve; or
(de) agree to do any of the foregoing.
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 amalgamate or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; it (except as may be required by Section 4.2 hereof), or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) such sales 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 and (B) all proceeds are paid to Agent for application to the Obligations in such order and manner as Agent may determine;
(iii) Asset Sales, except as otherwise provided herein, by any Borrower or Guarantor after the date hereof to the extent consented to in writing by Agent and Lenders;
(iv) sales or other dispositions by Huffy of the Bedford Real Estate; Celina Property or the sale or other disposition by HCAC of the Harrisburg Property, provided, that, -------- ---- as to each and all such sale, each of the following conditions is satisfied as determined by Lender: sales,
(A) Lender Agent shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to LenderAgent, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender Agent may request, ,
(B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default Default, shall exist or have occurred and be continuing;occurred,
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliatearm’s length transaction, and
(ED) any and all Net Available Proceeds payable or delivered to any Borrower or Guarantor in respect of the Net Cash Proceeds of any such sale or other disposition shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) as of the date of such sale and after giving effect thereto, no Event of Defaultor delivered, or actcaused to be paid or delivered, 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) the grant by Borrower after the date hereof of a non-exclusive license to any person Agent for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects application to the rights therein of Collateral Agent, (C) Obligations in such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except order and manner as Lender Agent may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;determine,
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof, ; provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- Agent shall have received not less than ten three (103) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsale, which notice shall specify the party selling such Capital Stock, 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, unless otherwise permitted except that such Borrower or Guarantor may pay cash dividends in Section 8.11 hereofrespect of such Capital Stock on terms and conditions and in amounts acceptable to Agent so long as Agent shall have received, in form and substance satisfactory to Agent, an agreement in writing from the holders of such shares of Capital Stock with respect to the rights to payment and other rights of the holder of such shares, (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 include any limitation on the right of any Borrower or Guarantor 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 any Borrower or Guarantor with Lender Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock of such Borrower or Guarantor in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(vi) the licensing by Huffy Brands and Gen-X Swiss of Intellectual Property owned by it to any Borrower, provided, that, as to any such license: (A) any rights of such Borrower shall be subject to the rights of Agent and Lenders in such Intellectual Property (including the rights of Agent and Lenders to use such Intellectual Property as provided in Section 10.2 hereof), (B) such license shall not impair, hinder or otherwise adversely affect the rights of Agent and Lenders with respect to such Intellectual Property, (C) such license as to any Borrower shall be consistent with the reasonable requirements of such Borrower in the ordinary course of its business and on terms no less favorable to such Borrower then such Borrower would otherwise be able to obtain from any person which is not an Affiliate (assuming for this purpose that such other person were the owner of the Intellectual Property subject to such license), (D) no Borrower shall make or be required to make any payments in cash or other immediately available funds or other property to Huffy Brands or Gen-X Swiss pursuant to such license arrangements and (E) all Indebtedness and other obligations of any Borrower to Huffy Brands arising in connection with such licensing arrangements shall be subject and subordinate in right of payment to the prior indefeasible payment and satisfaction in full of the Obligation;
(vii) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to a stock option plan (including, without limitation, the Amended and Restated 1989 Employee Stock Option Purchase Plan which became effective as of January 1, 1999) or 401(k) plan plans 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 option plan plans or 401(k) plan plans which would result in a Change of Control or other Event of Default and Default;
(Bviii) Borrower shall give Lender prior written notice the transfer by Huffy Brands of the material terms Intellectual Property owned by Huffy Brands to the Borrower that licenses such Intellectual Property as of the date hereof from Huffy Brands on or about the date of a Business Unit Sale of the assets of such stock option plan Borrower, so long as such Business Unit Sale has been consented to by Agent and the Intellectual Property so transferred shall remain subject to the security interest and lien of Agent (such other information with respect thereto that the security interest and lien of Agent shall continue in the Intellectual Property as Lender so transferred and owned by such Borrower until such security interest and lien may reasonably request,be released pursuant to such Business Unit Sale subject to such terms and conditions as Agent may agree);
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. No Borrower and ------------------------------------------------------- Guarantor shall notshall, and shall not nor permit any Subsidiary 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; or;
(b) sell, assign, lease, transfer 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 disposition of worn-out or obsolete Equipment or Equipment no longer used in the business of such Borrower so long as (A) if an Event of Default exists or has occurred and is continuing, any proceeds are paid to Lender and (B) such sales do not involve Equipment having an aggregate fair market value in excess of One Million Dollars ($1,000,000) for all such Equipment disposed of in any fiscal year of Borrowers;
(iii) sales of assets, Capital Stock or Indebtedness to another Borrower;
(iv) the issuance and sale by a Borrower of any Capital Stock of such Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: that (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsuch 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 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, unless otherwise permitted in Section 8.11 hereofthereof prior to one (1) year after the maturity of this Agreement, (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 include any limitation on the right of such Borrower to request or receive Loans or Letter of Credit Accommodations or the right of such 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 such 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) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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; and
(v) the disposition of the Capital Stock or assets of MIL provided that (A) as of the date thereof and after giving effect thereto (1) Total Excess Availability shall be no less than Five Million Dollars ($5,000,000) and (2) no Default or Event of Default shall have occurred and be continuing, (B) MIL shall thereafter no longer be a Borrower hereunder for any purposes or otherwise be entitled to any loans hereunder and (C) an amount equal to the amount by which the sum of all Loans and issued Letter of Credit Accommodations then outstanding exceeds the amount available to be borrowed by the remaining Borrowers under Section 2 after giving effect to the exclusion of the Accounts of MIL from such calculation shall immediately be paid to the Lender Payment Account to reduce the Obligations then outstanding;
(vic) form any Subsidiaries;
(d) acquire the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to any Person in which such Person would become a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms Subsidiary of such stock option plan and such Borrower (other information with respect thereto as Lender may reasonably request,than GIFL);
(ce) wind up, liquidate or dissolve; or
(df) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Neither Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary toshall, 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; , or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any stock or indebtedness to any other Person or any of its assets to any other Person, except for:
(i) sales and issuance by One Price of its Capital Stock or issuance of Capital Stock of One Price upon the exercise of stock options issued by One Price (subject, in each case, nevertheless to Section 10.1(j) hereof),
(ii) sales of Inventory in the ordinary course of businessbusiness and donations to charity of damaged and end of season Inventory to the extent permitted under Section 7.3(c) hereof,
(iiiii) the disposition of worn-out or obsolete Equipment so long as (A) if an Event of Default exists or has occurred and is continuing, any proceeds are paid to Lender and (B) such sales 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 under this clause (iii) and/or clause (iv) of this Section 9.7(b), and
(iv) sales or other dispositions by Borrowers of assets in connection with the closing or sale of any a Retail Store location of a Borrower in the Bedford Real Estateordinary 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, (A) on the date of, and after giving effect to, any such sale, each in any calendar year, Borrowers shall not have closed or sold during the calendar year in which this Agreement is executed, in addition to those Retail Store locations listed on Schedule 9.7 hereto which are closed or sold, Retail Store locations accounting for more than five (5%) percent of all sales of Borrowers in the following conditions is satisfied as determined by Lender: immediately preceding twelve (A12) month period, and in any subsequent calendar year, Borrowers shall not have closed or sold Retail Store locations accounting for more than ten (10%) percent of all sales of Borrowers in the immediately preceding twelve (12) month period, (B) Lender shall have received not less than ten (10) Business Days' business days prior written notice of the proposed such sale by Borrower of such propertyor other disposition, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default Default, shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Propertyoccurred, (D) such sale or other disposition, shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliatearm's length transaction, and (E) any and all of the Net Cash Proceeds of any net proceeds payable or delivered to such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment Borrower in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) as of the date of such sale and after giving effect theretoor other disposition, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute if an Event of Default shall exist exists or have has occurred and be continuing;
(iv) the grant by Borrower is continuing or after the date hereof aggregate amounts thereof received in any fiscal year of a non-exclusive license to any person for Borrowers, plus the use of any Intellectual Property consisting of trademarks amounts received from dispositions under Section 9.7(b)(iii) hereof, exceeds $250,000, shall be paid or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (A) at the time of the grant of the license and after giving effect thereto, no Event of Defaultdelivered, or actcaused to be paid or delivered, 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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereofeither, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender at Lender's option, for application to the Obligations in accordance with the terms hereof (except to the extent such order and manner 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) or to be held by Lender as Lender may determine 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor cash collateral for the benefit of its employees, directors Obligations on terms and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required conditions acceptable to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,Lender; or
(c) form or acquire any subsidiaries, or
(d) wind up, liquidate or dissolve; , or
(de) agree to do any of the foregoing, unless Lender's prior written consent is expressly required as a condition of any binding effect upon either Borrower of any such agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (One Price Clothing Stores Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary of its Subsidiaries to (and Lender does not authorize Borrower or 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; 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 in the event of a store closure, (iii) the disposition of worn-out or obsolete Equipment or Equipment no longer used in the Borrower’s business, so long as (A) any proceeds are paid to Lender and (B) such sales do not involve Equipment having an aggregate fair market value in excess of Two Hundred Thousand Dollars ($200,000) for all such Equipment disposed of in any fiscal year of Borrower; and (iv) the Bedford Real Estateissuance and sale by Borrower of Capital Stock of Borrower after the date hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to 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 proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine determine, 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Restricted Subsidiary to (and neither Agent nor any Lender authorizes 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 itit except that (i) any Restricted Subsidiary or Obligor may merge with and into or consolidate with any other Restricted Subsidiary or Obligor, (ii) any Restricted Subsidiary may merge with and into a Person that will, upon the consummation of such merger become a Restricted Subsidiary; provided that such Person executes and delivers all documents and agreements required to be executed and delivered by a Restricted Subsidiary and, after a Trigger Event, Agent shall have consented (which consents shall not be unreasonably withheld), and (iii) any Subsidiary formed for the purpose of effectuating an acquisition permitted under Section 9.10 hereof may merge or consolidate with a Person acquired pursuant to such permitted acquisition; or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person after the occurrence and during the continuance of a Trigger Event, except for (i) sales of Inventory in the ordinary course of business,
, (ii) the disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Agent and (B) such sales 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 Borrower, (iii) the issuance and sale by Borrower or any Restricted Subsidiary of Capital Stock of Borrower or any Restricted Subsidiary after the date hereof, (iv) sales of Inventory in connection with actions otherwise permitted hereunder, (v) sales of the Real Property set forth on Schedule 9.7(b), (vi) sales of other assets which in the aggregate amount to no more than $10,000,000 in any fiscal year and (vii) the sale, assignment, lease or transfer or disposal of any of the Bedford Real Estateassets by Borrower or any Restricted Subsidiary to a Restricted Subsidiary; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorany Restricted Subsidiary, 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 Guarantor any Restricted Subsidiary from such sale, (B) neither Borrower or Guarantor nor any Restricted 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, unless otherwise permitted in Section 8.11 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 include any limitation on the right of Borrower or any Restricted Subsidiary to request or receive Loans or Letter of Credit Accommodations or the right of Borrower or any Restricted Subsidiary 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 or Guarantor with Lender Agent or are more restrictive or burdensome to Borrower or Guarantor any Restricted Subsidiary than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve except that any Restricted 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 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 loan agreement or instrument to which such Restricted Subsidiary is a party or may be bound, (ii) such winding up, liquidation or dissolution shall be done in accordance with all material requirements of applicable laws and regulations, and (iii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Person shall be duly and validly transferred and assigned to Borrower or another Restricted Subsidiary subject to the liens and security interests of Agent to the extent capable of being transferred and permitted by applicable law; or
(d) agree to do any of the foregoingforegoing not otherwise permitted.
Appears in 1 contract
Samples: Loan and Security Agreement (Champion Enterprises Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and 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; 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales do not involve Equipment having an aggregate fair market value in excess of $50,000 for all such Equipment disposed of in any fiscal year of Borrower and (iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, which notice shall specify the parties to whom such shares are Capital Stock is 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to 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 proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine determine, 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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly.indirectly do or agree to do any of the following:
(a) 2.31.1 merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with itit unless Borrower shall be the survivor of any such merger or consolidation; or
(a) take or permit to be taken any action which could impair the rights of the Secured Party in the Properties or the Collateral, (b) sell, assign, lease, transfer, abandon or otherwise dispose of any stock or indebtedness or any assets other than Collateral if after giving effect thereto there would be a breach of Section 2.8 hereof , (c) take or permit to be taken any action which would constitute a Transfer under the Mortgages, or (d) sell, assign, lease, transfer, abandon or otherwise dispose of any Properties or the Collateral except for the following in the ordinary course of business and consistent with present business practice and the requirements of the Principal Agreements:
(i) sales of Inventory in the ordinary course of business,Inventory;
(ii) the disposition of worn-out or obsolete Equipment so long as if an Event of Default exists or has occurred and is continuing, any proceeds are paid to Secured Party and such sales do not involve Equipment having an aggregate fair market value in excess of Ten Thousand Dollars ($10,000) for all such Equipment disposed of in any fiscal year of Borrower; and
(iii) the sale of any or disposition of the Bedford Real Estateproperty set forth on SCHEDULE 2.31 hereto in accordance with commercially reasonable business practices; provided, thathowever, that notwithstanding the foregoing, provided that no Event of -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender ------- Default shall have received occurred and be continuing or would occur (including, without limitation, under Section 2.8 hereof) under any other Section of this Agreement or any other Loan Document after giving effect to the following, the Borrower shall be permitted to sell or otherwise dispose of Collateral and will not be required to elect the Defeasance Option under the Note as a result solely of such disposition of Collateral, so long as (i) Borrower shall provide Secured -- ---- -- Party with not less than ten sixty (1060) Business Days' days prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may requestdisposition, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (Gii) Borrower shall not incur any liabilities grant Secured Party a first priority security interest in connection with such sales except as permitted herein, and lien on additional assets of Borrower (Hthe "Replacement Collateral") as which shall be have an Appraised Value equal to or greater than that 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender Collateral being replaced and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate otherwise acceptable in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing Secured Party and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (Biii) Borrower shall give Lender prior written notice of execute and deliver to Secured Party such agreements, documents and instruments as Secured Party may deem necessary or desirable to perfect Secured Party's first priority security interest in the material terms of such stock option plan Replacement Collateral which shall be deemed Collateral for all purposes under this Agreement and such the other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoingLoan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Discovery Investments 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; , or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) such sales 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 and (B) all proceeds are paid to Agent for application to the Obligations in such order and manner as Agent may determine;
(iii) Asset Sales, except as otherwise provided herein, by any Borrower or Guarantor after the date hereof to the extent consented to in writing by Agent and Lenders;
(iv) sales or other dispositions by Huffy of the Bedford Real Estate; providedCelina Property or the sale or other disposition by HCAC of the Harrisburg Property, thatPROVIDED, -------- ---- THAT, as to each and all such sale, each of the following conditions is satisfied as determined by Lender: sales,
(A) Lender Agent shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to LenderAgent, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender Agent may request, ,
(B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default Default, shall exist or have occurred and be continuing;occurred,
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- AffiliateBONA FIDE arm's length transaction, and
(ED) any and all Net Available Proceeds payable or delivered to any Borrower or Guarantor in respect of the Net Cash Proceeds of any such sale or other disposition shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) as of the date of such sale and after giving effect thereto, no Event of Defaultor delivered, or actcaused to be paid or delivered, 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) the grant by Borrower after the date hereof of a non-exclusive license to any person Agent for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects application to the rights therein of Collateral Agent, (C) Obligations in such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except order and manner as Lender Agent may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;determine,
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof; PROVIDED, provided, thatTHAT, (A) as to any issuance and sale after the date hereof, Lender -------- ---- Agent shall have received not less than ten three (103) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsale, which notice shall specify the party selling such Capital Stock, 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, unless otherwise permitted EXCEPT THAT such Borrower or Guarantor may pay cash dividends in Section 8.11 hereofrespect of such Capital Stock on terms and conditions and in amounts acceptable to Agent so long as Agent shall have received, in form and substance satisfactory to Agent, an agreement in writing from the holders of such shares of Capital Stock with respect to the rights to payment and other rights of the holder of such shares, (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 include any limitation on the right of any Borrower or Guarantor 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 any Borrower or Guarantor with Lender Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock of such Borrower or Guarantor in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(vi) the issuance licensing by Huffy Brands of Capital Stock of Borrower or Guarantor consisting of common stock pursuant Intellectual Property owned by it to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employeesany Borrower, directors and consultantsPROVIDED, providedTHAT, that, as to any such license: (A) any rights of such Borrower shall be subject to the rights of Agent and Lenders in no event shall Borrower or Guarantor be -------- ---- required such Intellectual Property (including the rights of Agent and Lenders to issueuse such Intellectual Property as provided in Section 10.2 hereof), or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) such license shall not impair, hinder or otherwise adversely affect the rights of Agent and Lenders with respect to such Intellectual Property, (C) such license as to any Borrower shall give Lender prior written notice of be consistent with the material terms reasonable requirements of such stock option plan Borrower in the ordinary course of its business and on terms no less favorable to such Borrower then such Borrower would otherwise be able to obtain from any person which is not an Affiliate (assuming for this purpose that such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.person were
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to (and Lender does not authorize Borrower or 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; or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of the Collateral to any other Person, except for (i) sales of Inventory in the ordinary course of business,
; (ii) the disposition of worn-out or obsolete Equipment other than Vehicles so long as (A) any proceeds are paid to Lender and (B) such sales do not involve Equipment having an aggregate fair market value in excess of $200,000.00 for all such Equipment disposed of in any fiscal year of Borrower; (iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to 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 proceeds from any such sale and issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine and determine, (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 notice or passage of time or both would constitute an Event of Default shall exist or have occurred occurred, and be continuing;
(viF) the issuance of Borrowers shall not issue any preferred Capital Stock of Borrower or Guarantor consisting of common stock pursuant (except that SMF may issue up to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit $2,000,000 in aggregate principal amount of its employeesSeries D Preferred Stock); and (iv) sales or other dispositions of worn-out or obsolete Vehicles in the ordinary course of business of Borrower, directors and consultants, provided, that, so long as (A) in no event shall Borrower Default or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and exists at the time of any such sale or other disposition, (B) Borrower shall give has provided Lender prior with written notice of the material terms proposed sale or disposition not less than five (5) Business Days prior to the consummation thereof, and Lender has provided its prior written consent to such sale or other disposition, and (C) no later than three (3) Business Days after the sale or other disposition of such stock option plan Vehicle, Borrower shall have remitted the net sale proceeds thereof to Lender, in cash, which shall be applied by Lender to the outstanding balance of the Revolving Loans at such time and a Reserve against the Borrowing Base established (or increased) in the amount of such other information with respect thereto as Lender may reasonably request,net proceeds (the "Disposed Vehicle Reserve"); or
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
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; or
, or (b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its properties or assets to any other Person (except for (i) sales or other dispositions by a Borrower or its Subsidiaries of Inventory assets in the ordinary course of business,
(ii) the sale business of any such Borrower or Subsidiary which consist of the Bedford Equipment or Real EstateProperty; provided, that, -------- ---- as to each and all such salesales, each of the following conditions is satisfied as determined by Lender: (A) Lender at least eighty (80%) percent of the consideration received from such sale is in the form of cash or Cash Equivalents, (B) the net cash proceeds from such sale or other disposition are first used to repay any Indebtedness secured by the property so sold or otherwise disposed of and any net cash proceeds thereafter are applied to make an investment, capital expenditure or other expenditure which is related to the business of such Borrower as it is conducted on the date hereof and is otherwise permitted hereunder, within two hundred seventy (270) days of such sale or other disposition, provided, that, such Borrower shall not be required to make such investment, capital expenditure or other expenditure with the proceeds of such sale or other disposition to the extent of such proceeds do not exceed $5,000,000 in the aggregate, (C) Agent shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to LenderAgent, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender Agent may reasonably request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, and (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
occurred, (ii) sales of Inventory in the ordinary course of business, (iii) the sale by Borrower disposition of any worn-out or obsolete Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price other assets which are not Collateral and the manner of payment thereof, the total amount of all cash which are no longer used or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan useful in the inverse order business of maturitya Borrower or its Subsidiaries, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant transfer by Borrower after the date hereof of a non-exclusive license Doe Run to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each Buick Recycling of the -------- ---- following conditions is satisfied as determined by Lender: (Aassets listed on Schedule 7.6(c) 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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects hereto to the rights therein of Collateral Agent, (Cextent permitted by Section 7.6(c) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
hereof; (v) the issuance and sale by Borrower Doe Run to the holders of the New Warrants of Capital Stock of Doe Run in accordance with the terms of the Plan New Warrants and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after New Warrant Documents (as the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 same 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof), (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;
(vi) the issuance by Doe Run to Renco Group of Capital the Renco Preferred Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for in accordance with the benefit of its employees, directors and consultants, provided, that, Renco Preferred Stock Purchase Agreement (A) as in no event shall Borrower or Guarantor be -------- ---- required to issueeffect on the date hereto), or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
, or (d) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Doe Run Resources Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor Borrowers shall not, and shall not permit any Subsidiary to (and Agent and Lenders do not authorize any Borrower to), directly or indirectly.,
(a) merge into or with consolidate or consolidate amalgamate with any other Person or permit any other Person to merge into or with or consolidate with itit (except that any Borrower (other than the Parent) may be merged into, consolidated with, or amalgamated with any other Borrower and any wholly-owned Subsidiary of any Borrower may be merged into such Borrower); or
(b) sell, assign, lease, 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 disposition of Equipment as permitted under the Term Loan Agreement, and (iii) the issuance and sale by Parent of any Capital Stock of Parent after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorParent, 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 Guarantor from such sale, (B) Borrower or Guarantor 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, unless otherwise permitted in Section 8.11 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 include any limitation on the right of Parent or any other Borrower to request or receive Loans or Letter of Credit Accommodations or the right of Parent or any other 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 Borrowers with Agent or Guarantor with Lender Lenders or are more restrictive or burdensome to Borrower or Guarantor Borrowers than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolvedissolve (except in the case of the Inactive Subsidiaries); or
(d) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan Agreement (Clean Harbors Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds of such disposition are paid to Lender, for application to the Obligations in such order and manner as Lender shall determine and (B) such sales do not involve Equipment having an aggregate fair market value in excess of $50,000 for all such Equipment disposed of in any fiscal year of Borrower or Guarantors;
(iii) the issuance and sale or other disposition by Borrower of any Capital Stock of Borrower after the Bedford Real Estate; date hereof, provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, which notice shall specify the parties to whom such shares are to be soldsold or otherwise disposed of, the terms of such salesale or other disposition, the total amount which it is anticipated will be realized from the issuance and sale or other disposition of such stock and the net cash proceeds which it is anticipated will be received by Borrower or Guarantor from such salesale or other disposition, (B) 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 8.11 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 which affect the right of Borrower to request or receive Loans or Letter of Credit Accommodations or 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 or Guarantor and Guarantors with Lender or are more restrictive or burdensome to Borrower or any Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 other 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;occurred; or
(viiv) the issuance of Capital Stock up to 8,000,000 shares of common stock of Borrower upon the exercise of any options, warrants to purchase such common stock or earnout agreements whether outstanding as of the date hereof or hereafter issued by Borrower whether to officers of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, in connection with acquisitions permitted hereunder (provided, that, (A) in after giving effect to the issuance of such shares, no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,occur);
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Health Fitness Physical Therapy Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. No Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary toshall, 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; , or
(b) sell, assign, lease, transfer, abandon or otherwise dispose of any 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 disposition of worn-out or obsolete Equipment, so long as (A) if an Event of Default exists or has occurred and is continuing, any proceeds are paid to Lender and (B) such sales 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,
(iii) sales or other dispositions by a Borrower of assets in connection with the closing or sale of any a retail store location of such Borrower in the Bedford Real Estateordinary course of Borrowers' business, which assets so disposed of 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 sale, each of the following conditions is satisfied as determined by Lender: sales (A) Lender shall have received not less than ten five (105) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations and all net proceeds payable or restrictions on the use delivered to a Borrower in respect of such trademarks sale or patents by Borrower other disposition shall be paid or Guarantor delivered, or which would limit caused to be paid or restrict the ability of delivered, to Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereofeither, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender at Lender's option, for application to the Obligations in accordance with the terms hereof (except to the extent such order 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) or to be held by Lender as cash collateral for the Obligations on terms and manner as Lender may determine and (E) as of the date of such issuance and sale and after giving effect theretoconditions acceptable to Lender, 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
(viiv) returns of Eligible RTV Inventory to the issuance respective vendors thereof in the ordinary course of Capital Stock business, upon compliance with and subject to the provisions of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(kSection 7.3(i) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,hereof; or
(c) form or acquire any subsidiaries, or
(d) wind up, liquidate or dissolve; dissolve (except for dissolution of any inactive Guarantors upon not less than twenty (20) days prior written notice to Lender), or
(de) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Trans World Entertainment 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 for mergers of a Borrower into, or consolidations of a Borrower with, another Borrower in which a Borrower is the 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Agent and (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;
(iii) the issuance and sale by any Borrower of any Capital Stock of such Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsuch 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 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, unless otherwise thereof except as permitted in Section 8.11 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 include any limitation on the right of any Borrower to request or receive Loans or Letter Letters 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 Borrower Borrowers with Agent or Guarantor with Lender 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) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 and after giving effect thereto, no Default or Event of Default shall exist or acthave occurred;
(iv) the issuance of Capital Stock of any Borrower consisting, condition of common stock pursuant to a stock option plan, 401(k) plan, or incentive stock award plan of such Borrower for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower be required to issue, or shall such Borrower issue, Capital Stock pursuant to such stock option plan, 401(k) plan, or incentive stock award plan which would result in an Event of Default;
(v) sales of Excluded Real Property (other than Excluded Real Property covered by a Mortgage pursuant to Section 9.19 hereof) and related assets, provided, that, as to each and all of such sales (A) Agent shall have received not less than ten (10) days’ prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale, the Excluded Real Property to be sold, the purchase price and the manner of payment thereof and such other information with notice respect thereto as Agent may request, (B) such sale shall be on commercially reasonable terms in a bona fide arm’s-length transaction with a non-affiliated Person, (C) all of the Net Proceeds of any such sale shall be paid either (i) directly to Agent or passage (ii) to a Borrower, provided, that, the entire amount of time the Net Proceeds are used to repay the outstanding amount of Loans which amounts may be reborrowed, (D) Borrowers shall not incur any liabilities in connection with such sales except as permitted herein, and (E) as of the date of such sale and after giving effect thereto, no Default or both would constitute an Event of Default shall exist or have occurred and be continuing;
(vi) dispositions of investments permitted under Section 9.10(b) to the issuance extent the proceeds thereof are used to acquire additional investments permitted under Section 9.10(b);
(vii) sales of Capital Stock of Borrower or Guarantor consisting of common stock Factored Accounts by JCC to Factor pursuant to a stock option plan the Factoring Agreement or 401(ksales of such Factored Accounts to any other Qualified Factor; and
(viii) plan the charitable donation of Borrower or Guarantor for the benefit of its employeesBorrowers’ Fayette County, directors Alabama Real Property and consultantsrelated assets, provided, that, (A) Borrowers shall not incur any liabilities in no event shall Borrower or Guarantor be -------- ---- required to issueconnection with such donation, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice as of the material terms date of such stock option plan donation and such other information with respect thereto as Lender may reasonably request,after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(c) form or acquire any Subsidiaries other than those listed on the Information Certificate and as permitted in accordance with Section 9.10 hereof;
(d) wind up, liquidate or dissolve, except for liquidations or dissolutions of an Immaterial Subsidiary; or
(de) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor None of Parent or Borrowers shall, nor shall not, and shall not they permit or suffer any Subsidiary of their respective 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; orit unless Parent or such Borrower is the surviving corporation, such merger or consolidation is permitted under Section 9.10, and no Event of Default has occurred and is then continuing (after giving effect to such merger or consolidation);
(b) sell, transfer, or otherwise dispose of all or substantially all of its assets;
(c) make any Asset Sale unless (i) sales Parent or such Borrower or Subsidiary receives consideration at the time of Inventory such Asset Sale at least equal to the fair market value (as determined in good faith by Parent's Board of Directors) of the ordinary course of business,
assets subject to such Asset Sale, (ii) subject to the sale of any proviso to this clause (ii), at least 85% of the Bedford Real Estate; providedconsideration for such Asset Sale is in the form of cash, thatCash Equivalents, -------- ---- as or liabilities of Parent, any Borrower, or any such Subsidiary (other than liabilities that are by their terms subordinated to each such sale, each of the following conditions is satisfied as determined Obligations) that are assumed by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower transferee of such propertyassets (so long as following such Asset Sale there is no further recourse to Parent, which notice shall set forth in reasonable detail satisfactory to Lenderany Borrower, the parties to such sale, the purchase price and the manner or any other Subsidiary of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower Parent with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsedliabilities), provided, thathowever, that in no event the case of any Asset Sale of Accounts or general intangibles for money due or to become due, or chattel paper or instruments related thereto, 100% of the consideration therefor shall Borrower be required to pay in the form of cash, (or -------- ---- be chargediii) upon receipt of any interest or other amounts Net Proceeds from an Asset Sale of Collateral, such Net Proceeds of Collateral are paid to Lender in respect to the extent of such cash collateral, (E) fifty (50%) percent and for application to the then outstanding principal balance of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 Asset 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 exist or have has occurred and be is continuing;; or
(vid) form or acquire any Subsidiaries not in existence on the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for date hereof (unless each such Subsidiary has complied with the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,requirements set forth Section 9.10(d)); or
(ce) wind up, liquidate or dissolve; dissolve or
(df) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlantic Express Transportation 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 for mergers of a Borrower into, or consolidations of a Borrower with, another Borrower in which a Borrower is the surviving entity; or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Agent and (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;
(iii) the issuance and sale by any Borrower of any Capital Stock of such Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsuch 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 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, unless otherwise thereof except as permitted in Section 8.11 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 include any limitation on the right of any Borrower to request or receive Loans or Letter Letters 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 Borrower Borrowers with Agent or Guarantor with Lender 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) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 and after giving effect thereto, no Default or Event of Default shall exist or acthave occurred;
(iv) the issuance of Capital Stock of any Borrower consisting, condition of common stock pursuant to a stock option plan, 401(k) plan, or incentive stock award plan of such Borrower for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower be required to issue, or shall such Borrower issue, Capital Stock pursuant to such stock option plan, 401(k) plan, or incentive stock award plan which would result in an Event of Default;
(v) sales of Excluded Real Property (other than Excluded Real Property covered by a Mortgage pursuant to Section 9.18 hereof) and related assets, provided, that, as to each and all of such sales (A) Agent shall have received not less than ten (10) days' prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale, the Excluded Real Property to be sold, the purchase price and the manner of payment thereof and such other information with notice respect thereto as Agent may request, (B) such sale shall be on commercially reasonable terms in a bona fide arm's-length transaction with a non-affiliated person, (C) all of the Net Proceeds of any such sale shall be paid either (i) directly to Agent or passage (ii) to a Borrower, provided, that, the entire amount of time the Net Proceeds are used to repay the outstanding amount of Loans which amounts may be reborrowed, (D) Borrowers shall not incur any liabilities in connection with such sales except as permitted herein, and (E) as of the date of such sale and after giving effect thereto, no Default or both would constitute an Event of Default shall exist or have occurred and be continuing;
(vi) dispositions of investments permitted under Section 9.10(b) to the issuance extent the proceeds thereof are used to acquire additional investments permitted under Section 9.10(b); and
(vii) sales of Capital Stock of Borrower or Guarantor consisting of common stock Factored Accounts by JCC to Factor pursuant to a stock option plan the Factoring Agreement or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms sales of such stock option plan and such Factored Accounts to any other information with respect thereto as Lender may reasonably request,Qualified Factor.
(c) form or acquire any Subsidiaries other than those listed on the Information Certificate and as permitted in accordance with Section 9.10 hereof, except that Delta may form JCC and JCC may acquire the assets of Junkfood Seller pursuant to the Junkfood Purchase Documents;
(d) wind up, liquidate or dissolve, except for liquidations or dissolutions of an Immaterial Subsidiary or SAIM; or
(de) agree to do any of the foregoing.
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; or
, except that (i) sales of Inventory any Inactive Subsidiary may dissolve in the ordinary course of business,
accordance with Section 9.22 and (ii) the sale of any of the Bedford Real Estate; Borrower or Guarantor may merge with and into or consolidate with any other Borrower or Guarantor, provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by LenderLender in good faith: (A) Lender shall have received not less than ten five (105) Business Days' days prior written notice of the proposed sale by Borrower intention of such property, which notice shall set forth in reasonable detail satisfactory Borrower or Guarantor to Lender, the parties to so merge or consolidate and such sale, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower information with respect to such sale, the total estimated costs related to such sale and such other matters thereto as Lender may requestrequest in good faith, (B) all as of the proceeds from any such sale shall be paid directly to Lender on the effective date of the transfer of ownership merger or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower)consolidation and after giving effect thereto, (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower and (C) the terms of the Capital Stock resulting from such merger or consolidation, and the terms and conditions of the purchase and sale thereof, shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective not include any limitation on the first day right of any Borrower or Guarantor 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 month after terms and conditions of this Agreement or any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month other Financing Agreements or otherwise in any way adversely affect the arrangements of any Borrower or Guarantor with Lender; or
(b) wind up, liquidate or dissolve, except that any Subsidiary of Safety which any such change occurs as calculated by Lender and calculated based on is not a three hundred sixty (360) day year and actual days elapsed)Borrower or Guarantor may wind up, liquidate or dissolve, provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by LenderLender in good faith: (i) no Borrower or Guarantor shall assume any 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 Subsidiary which is winding up, liquidating or dissolving, (ii) Lender shall have received not less than ten (10) Business Days prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, and (iii) all assets of the Subsidiary which is winding up, liquidating or dissolving shall be promptly distributed to it shareholders or partners, as the case may be; or
(c) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as any proceeds are paid to Lender for application to the Obligations and such sales 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, (iii) the issuance and sale by such Person of Capital Stock of such Person after the date hereof; provided, that, (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsuch 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 66 of such stock and the net cash proceeds which it is anticipated will be received by Borrower or Guarantor such Person from such sale, (B) Borrower or Guarantor 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, unless otherwise permitted in Section 8.11 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 include any limitation on the right of Borrower Borrowers to request or receive Loans or Letter of Credit Accommodations Accommodations, or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement Agreement, or any of the other Financing Agreements Agreements, or otherwise in any way relate to or adversely affect the arrangements of any Borrower or Guarantor with Lender Lender, or are more restrictive or burdensome to Borrower or Guarantor such Person than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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;
(viiv) the issuance sale or other disposition of Capital Stock of Equipment by a Borrower or Guarantor consisting of common stock pursuant for fair market value in an arms-length transaction in an aggregate amount not to a stock option plan or 401(kexceed $2,000,000 per year so long as (A) plan of Borrower or Guarantor all proceeds are promptly delivered to Lender to be held as cash collateral for the benefit of its employees, directors and consultants, Obligations; provided, that, after such proceeds are delivered to Lender, such Borrower may, within 180 days of the date of such sale or disposition, request that Lender release the cash collateral to the extent that such cash is promptly applied by such Borrower to replace the Equipment so sold or otherwise disposed of, and Lender shall release such cash collateral for such purpose if (Ax) in Lender shall have a first perfected Lien on the replacement Equipment and (y) as of the date of such release, no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default or act, event or condition which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred; provided, that if such cash is not so applied within 180 days, Lender shall apply such cash to repay first, the Term Loans (if any) in the inverse order of maturity and second, the Revolving Loans and (B) Borrower shall give Lender prior written notice as of the material terms date of such stock option plan sale and such other information after giving effect thereto, no Event of Default or act, event or condition which with respect thereto as Lender may reasonably request,
(c) wind up, liquidate notice or dissolvepassage of time or both would constitute an Event of Default; or
(d) agree to do any of the foregoingforegoing in violation of this Section 9.7.
Appears in 1 contract
Samples: Loan and Security Agreement (Safety Components International Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; or;
(b) sell, assign, lease, 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
(ii) the disposition of worn-out or obsolete Equipment or Equipment no longer used in the business of Borrower so long as (A) any proceeds are paid to Lender and (B) such sales do not involve Equipment having an aggregate fair market value in excess of $50,000 for all such Equipment disposed of in any fiscal year of Borrower,
(iii) the sale of any by Borrower of the Bedford Real Estate; Accounts due to Borrower from Montxxxxxx Xxxd xxxsing prior to the commencement of the pending proceedings of Montxxxxxx Xxxd xxxer the U.S. Bankruptcy Code, provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lendersatisfied: (A) such sale shall be in a bona fide arm's length transaction on commercially reasonable prices and terms (and in no event at a price less than the amount paid for similar claims on or about such time in other similar transactions), (B) Lender shall have received not less than ten three (103) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such salethereto, the purchase price and the manner of payment thereof, the total amount other material terms of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters information with respect thereto as Lender may reasonably request, (BC) promptly upon Lender's request, Lender shall have received true, correct and complete copies of all agreements, documents and instruments executed and/or delivered in connection with such sale therewith, as duly authorized, executed and delivered by the parties thereto, (D) immediately upon the consummation of the sale, any and all proceeds from any payable or delivered to Borrower in respect of such sale shall be paid or delivered, or caused to be paid or delivered, directly to Lender on for application to the date installments of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender principal in respect of such cash collateralof the Term Loan as Lender determines, in the inverse order of maturity, and (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;occurred; or
(iv) prior to July 31, 1998, sales by the grant by Stratford Division of Borrower after the date hereof of a non-exclusive license certain of its Accounts to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents Factor pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after Factoring Agreement (as in effect on the date hereof after giving effect to the amendment referred to in Section 4.1 hereof, ); provided, that, (A) as all amounts payable to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) 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 8.11 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 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 Factor or otherwise in any way relate to or affect the arrangements of Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof connection therewith 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 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;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant sent by wire transfer to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.Blocked
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to (and no Agent nor any Lender authorizes 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; orit if such merger or consolidation results in a Change of Control;
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Administrative Agent and (B) such sales do not involve Equipment having an aggregate fair market value in excess of $2,000,000 for all such Equipment disposed of in any fiscal year of Borrower;
(iii) sales or other dispositions by Borrower of assets in connection with the closing or sale of any a retail store location of Borrower in the Bedford Real Estateordinary course of 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, (A) on the date of, and after giving effect to, any such sale, each in any calendar year, Borrower shall not have closed or sold retail store locations accounting for more than seven and one-half (7 1/2%) percent of all sales of Borrower in the following conditions is satisfied as determined by Lender: immediately preceding twelve (A12) Lender month period, (B) Administrative Agent shall have received not less than ten (10) Business Days' Days prior written notice of the proposed sale by Borrower of such propertysale, which notice shall set forth in reasonable detail satisfactory to LenderAdministrative Agent, the parties to such salesale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale thereof and such other matters information with respect thereto as Lender Administrative Agent may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default Default, shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Propertyoccurred, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliatearms length transaction, and (E) any and all net proceeds payable or delivered to respect of the Net Cash Proceeds of any such sale or other disposition shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) as of the date of such sale and after giving effect thereto, no Event of Defaultor delivered, or actcaused to be paid or delivered, 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) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock Administrative Agent in accordance with the terms of this Agreement either, at Administrative Agent’s option, for application to the Plan Obligations in accordance with the 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) or to be held by Administrative Agent as cash collateral for the Obligations on terms and the issuance and sale by Borrower or Guarantor conditions acceptable to Administrative Agent;
(iv) sales of Capital Stock of Borrower or Guarantor after the date hereof, pursuant to a Qualified Public Offering; provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall 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 Guarantor from such sale, (B) Borrower or Guarantor shall not (except as permitted by Section 9.11) pay or be required to pay any dividends or repurchase or redeem such Capital Stock stock or make any other payments in respect thereof, unless otherwise permitted in Section 8.11 hereof, thereof on or prior to the end of the then current term of this Agreement and (CB) the terms of such Capital Stock, Stock and the terms and conditions of the purchase and sale thereof, thereof shall not include any terms that limit the right otherwise be reasonably acceptable to Administrative Agent in all respects;
(v) sales or other issuance’s of Capital Stock of Borrower to request or receive Loans or Letter of Credit Accommodations or Borrower’s directors, officers, employees and/or consultants pursuant to amend or modify any of the terms and conditions of this Agreement Borrower’s Restricted Stock Plan or any of Borrower’s other stock ownership arrangements established for the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 benefit of such issuance and sale and after giving effect theretodirectors, no Event of Default or actofficers, 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 continuingemployees and/or consultants;
(vi) the issuance sales of Capital Stock to existing shareholders of the Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(krights offerings to such existing shareholders; or
(vii) plan sales of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock to new investors if the sale of the stock is authorized under the Amended and Restated Reclassification and Sale of Shares Agreement, dated April 29, 1998, as amended or otherwise modified from time to time pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,thereof;
(c) form or acquire any subsidiaries; or
(d) wind up, liquidate or dissolvedissolve (other than wind up, liquidate or dissolve Internet Sub in accordance with Section 9.16); or
(de) agree to do any of the foregoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Ulta Salon, Cosmetics & Fragrance, 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 for mergers of a Borrower into, or consolidations of a Borrower with, another Borrower in which a Borrower is the 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Agent and (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;
(iii) the issuance and sale by any Borrower of any Capital Stock of such Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender Agent shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or Guarantorsuch 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 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, unless otherwise thereof except as permitted in Section 8.11 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 include any limitation on the right of any Borrower to request or receive Loans or Letter Letters 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 Borrower Borrowers with Agent or Guarantor with Lender 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) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 and after giving effect thereto, no Default or Event of Default shall exist or acthave occurred;
(iv) the issuance of Capital Stock of any Borrower consisting, condition of common stock pursuant to a stock option plan, 401(k) plan, or incentive stock award plan of such Borrower for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower be required to issue, or shall such Borrower issue, Capital Stock pursuant to such stock option plan, 401(k) plan, or incentive stock award plan which would result in an Event of Default;
(v) sales of Excluded Real Property (other than Excluded Real Property covered by a Mortgage pursuant to Section 9.19 hereof) and related assets, provided, that, as to each and all of such sales (A) Agent shall have received not less than ten (10) days' prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale, the Excluded Real Property to be sold, the purchase price and the manner of payment thereof and such other information with notice respect thereto as Agent may request, (B) such sale shall be on commercially reasonable terms in a bona fide arm's-length transaction with a non-affiliated Person, (C) all of the Net Proceeds of any such sale shall be paid either (i) directly to Agent or passage (ii) to a Borrower, provided, that, the entire amount of time the Net Proceeds are used to repay the outstanding amount of Loans which amounts may be reborrowed, (D) Borrowers shall not incur any liabilities in connection with such sales except as permitted herein, and (E) as of the date of such sale and after giving effect thereto, no Default or both would constitute an Event of Default shall exist or have occurred and be continuing;
(vi) dispositions of investments permitted under Section 9.10(b) to the issuance extent the proceeds thereof are used to acquire additional investments permitted under Section 9.10(b);
(vii) sales of Capital Stock of Borrower or Guarantor consisting of common stock Factored Accounts by JCC to Factor pursuant to a stock option plan the Factoring Agreement or 401(ksales of such Factored Accounts to any other Qualified Factor; and
(viii) plan the charitable donation of Borrower or Guarantor for the benefit of its employeesBorrowers' Fayette County, directors Alabama Real Property and consultantsrelated assets, provided, that, (A) Borrowers shall not incur any liabilities in no event shall Borrower or Guarantor be -------- ---- required to issueconnection with such donation, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice as of the material terms date of such stock option plan donation and such other information with respect thereto as Lender may reasonably request,after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(c) form or acquire any Subsidiaries other than those listed on the Information Certificate and as permitted in accordance with Section 9.10 hereof;
(d) wind up, liquidate or dissolve, except for liquidations or dissolutions of an Immaterial Subsidiary; or
(de) agree to do any of the foregoing.
Appears in 1 contract
Sale of Assets, Consolidation, Merger, Dissolution, Etc. 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; or
(b) sell, assign, lease, 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 disposition of worn-out or obsolete Equipment so long as (A) any proceeds are paid to Lender and (B) such sales do not involve Equipment having an aggregate fair market value in excess of $100,000 all such Equipment disposed of in any fiscal year of Borrower;
(iii) the issuance and sale by Borrower of any Capital Stock of Borrower after the Bedford Real Estatedate hereof; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, 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, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as 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, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (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 the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by Borrower or GuarantorBorrower, 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 Guarantor from such sale, (B) 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, unless otherwise thereof except as permitted in Section 8.11 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 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 or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, and (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof 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 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 continuingoccurred;
(viiv) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or plan, 401(k) plan, or incentive stock award plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or plan, 401(k) plan, or incentive stock award plan which would result in a Change of Control or other an Event of Default Default;
(v) sales of Existing Real Property (other than Existing Real Property covered by a Mortgage pursuant to Section 9.18 hereof) and related assets, provided, that, as to each and all of such sales (BA) Borrower Lender shall give Lender have received not less than ten (10) days prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Lender, the material terms parties to such sale, the Existing Real Property to be sold, the purchase price and the manner of such stock option plan payment thereof and such other information with respect thereto as Lender may reasonably request,, (B) such sale shall be on commercially reasonable terms in a bona fide arm's-length transaction with a non- affiliated person, (C) all of the Net Proceeds of any such sale shall be paid either (i) directly to Lender or (ii) to Borrower, provided, that, the entire amount of the Net Proceeds are used to repay the outstanding amount of Revolving Loans which amounts may be reborrowed, (D) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, and (E) 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 or both would constitute an Event of Default shall exist or have occurred and be continuing.
(c) form or acquire any Subsidiaries other than those listed on the Information Certificate and as permitted in accordance with Section 9.10 hereof;
(d) wind up, liquidate or dissolve; or
(de) agree to do any of the foregoing.
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