Sales. (a) In the event a Stockholder (the “Seller”) proposes to sell any Shares (the “Sale Shares”) owned by such Stockholder to a Person other than a Permitted Transferee, such Seller must first provide notice (the “Sale Notice”) to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five (5) Business Days after receipt of the Sale Notice, to purchase the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committee. (b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase. (c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy of the Company. (d) Subject to Section 5.3(e), the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) and, in any event, no later than (i) 30 days after such expiration, if the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds. (e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares. (f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and the provisions of this Section 5.3 will continue to apply to any proposed Sale in the future.
Appears in 15 contracts
Samples: Stockholders Agreement (James F. McCann 2012 Family Trust - Portion I), Stockholders Agreement (McCann James F III), Stockholders Agreement (Erin McCann 2005 Trust)
Sales. Except as otherwise provided herein, to the fullest extent permitted under applicable law, at the election of the Mortgagee, the following provisions shall apply to any sale of the Mortgaged Property hereunder, whether made pursuant to the power of sale hereunder, any judicial proceeding or any judgment or decree of foreclosure or sale or otherwise:
(a) In The Mortgagee or the event court officer (whichever is the Person conducting any sale) may conduct any number of sales from time to time. The power of sale hereunder or with respect hereto shall not be exhausted by any sale as to any part or parcel of the Mortgaged Property which is not sold, unless and until the Secured Obligations shall have been paid in full, and shall not be exhausted or impaired by any sale which is not completed or is defective. Any sale may be as a Stockholder (the “Seller”) proposes to sell any Shares (the “Sale Shares”) owned by such Stockholder to a Person other than a Permitted Transfereewhole or in part or parcels and, such Seller must first provide notice (the “Sale Notice”) to the other Stockholders (fullest extent permitted under applicable law, the “Sale Offerees”), each of Mortgagor hereby waives its right to direct the order in which shall have the right, exercisable within five (5) Business Days after receipt of the Sale Notice, to purchase the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice Mortgaged Property or any part or parcel thereof is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committeesold.
(b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall Any sale may be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares postponed or adjourned by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed public announcement at the expiration of any election period, time and place appointed for such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchasesale or for such postponed or adjourned sale without further notice.
(c) Any deadlines stated herein notwithstandingAfter each sale, no election period the Person conducting such sale shall expire during any period when execute and deliver to the purchaser or purchasers at such sale a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy good and sufficient instrument or instruments granting, conveying, assigning, transferring and delivering all right, title and interest of the CompanyMortgagor in and to the Mortgaged Property sold and shall receive the proceeds of such sale up to the Maximum Secured Amount and apply the same as provided in Section 5.06. The Mortgagor hereby irrevocably appoints the Person conducting such sale as the attorney-in-fact of the Mortgagor (with full power to substitute any other Person in its place as such attorney-in-fact) to act in the name of the Mortgagor or, at the option of the Person conducting such sale, in such Person's own name, to make without warranty by such Person any conveyance, assignment, transfer or delivery of the Mortgaged Property sold, and to execute, acknowledge and deliver any instrument of conveyance, assignment, transfer or delivery or other document in connection therewith or to take any other action incidental thereto, as the Person conducting such sale shall deem appropriate in its discretion; and the Mortgagor hereby irrevocably authorizes and directs any other Person to rely and act upon the foregoing appointment and a certificate of the Person conducting such sale that such Person is authorized to act hereunder. Nevertheless, upon the request of such attorney-in-fact the Mortgagor shall promptly execute, acknowledge and deliver any documentation which such attorney-in-fact may require for the purpose of ratifying, confirming or effectuating the powers granted hereby or any such conveyance, assignment, transfer or delivery by such attorney-in-fact.
(d) Subject Any statement of fact or other recital made in any instrument referred to in Section 5.3(e)5.05(c) given by the Person conducting any sale as to the non-payment of any Secured Obligation, the closing occurrence of any Event of Default, the amount of the sale Secured Obligations due and payable, the request to the Sale Offerees and Members will be held as soon as practicable after Mortgagee to sell, the expiration of all notice of the applicable election periods under Section 5.3(a)time, (b) place and (c) andterms of sale and the Mortgaged Property to be sold having been duly given, in the refusal, failure or inability of the Mortgagor to act, the appointment of any eventsubstitute or successor agent or any other act or thing having been taken or done by the Mortgagor, no later than (i) 30 days after the Mortgagee or any other Person shall be taken as conclusive and binding, absent manifest error, against all other Persons as evidence of the truth of the facts so stated or recited. The Person conducting any sale may appoint or delegate any other Person as agent to perform any act necessary or incident to such expirationsale, if including the value posting of notices and the conduct of such Sale Shares is less than $10 millionsale, but in the name and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership on behalf of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause Person conducting such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of fundssale.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with receipt by the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and Person conducting any sale of the Sale Shares purchase money paid at such sale shall be sufficient discharge therefor to any purchaser of any Mortgaged Property sold, and which date occurs during an open “window” under no such purchaser, or its representatives, grantees or assigns, after paying such purchase price and receiving such receipt, shall be bound to see to the xxxxxxx xxxxxxx policy application of such purchase price or any part thereof upon or for any trust or purpose of this Mortgage or the Company. The Seller and each other Financing Documents or, in any manner whatsoever, be answerable for any loss, misapplication or nonapplication of any such purchase money or be bound to inquire as to the purchasing Sale Offerees authorization, necessity, expediency or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale regularity of the Sale Sharessuch sale.
(f) Each Seller will have the right beginning with the expiration Subject to mandatory provisions of applicable law, any sale shall operate to divest all of the last election period estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Mortgagor in and to the Mortgaged Property sold, and shall be a perpetual bar both at law and in equity against the Mortgagor and any and all Persons claiming such Mortgaged Property or any interest therein by, through or under the Mortgagor.
(g) At any sale, the Mortgagee may bid for and acquire the Mortgaged Property sold and, in lieu of paying cash therefor, may make settlement for the purchase price by causing the Secured Parties to credit against the Secured Obligations, including the expenses of the sale and the cost of any enforcement proceeding hereunder, the amount of the bid made therefor to the extent necessary to satisfy such bid.
(h) If the Mortgagor or any Person claiming by, through or under the Mortgagor shall transfer or fail to surrender possession of the Mortgaged Property, after the exercise by the Mortgagee or a Receiver of its remedies under Section 5.3(a)5.02(a)(vi) or after any sale of the Mortgaged Property pursuant hereto, (b) and (c) and continuing until 90 days thereafter or, if laterthen to the fullest extent permitted under applicable law, the last date for Mortgagor or such Person shall be deemed a tenant at sufferance of the closing of purchaser at such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Noticesale, subject to compliance with eviction by means of summary process for possession of land, or subject to any other right or remedy available hereunder or under applicable xxxxxxx xxxxxxx policy law.
(i) Upon any sale, it shall not be necessary for the Person conducting such sale to have any Mortgaged Property being sold present or constructively in its possession.
(j) If a sale hereunder shall be commenced by the Mortgagee, the Mortgagee may at any time before the sale abandon the sale, and may institute suit for the collection of the Company. If such Sale Shares are not sold prior to Secured Obligations or for the Sale Expiration Dateforeclosure of this Mortgage; or if the Mortgagee shall institute a suit for collection of the Secured Obligations or the foreclosure of this Mortgage, all rights to the Mortgagee may at any time before the entry of final judgment in said suit dismiss the same and sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and Mortgaged Property in accordance with the provisions of this Section 5.3 will continue to apply to any proposed Sale in the futureMortgage.
Appears in 3 contracts
Samples: Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Polaroid Corp), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Polaroid Corp), Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Polaroid Corp)
Sales. (a) In Upon acceptance of the event Buyer's Article III Offer, each Offeree shall, within a Stockholder (reasonable period prior to the “Seller”) proposes closing of such Article III Sale, deliver to sell any Shares (the “Sale Shares”) owned Transferor a certificate or certificates representing the shares of Restricted Securities to be sold or otherwise disposed of pursuant to the Article III Offer by such Stockholder to a Person other than a Permitted TransfereeOfferee, such Seller must first provide notice (the “Sale Notice”) to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five (5) Business Days after receipt of the Sale Notice, to purchase the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committee.free and clear of
(b) The Transferor shall have 120 days, commencing on the day the Inclusion Notice is mailed, in which to sell to the Buyer or otherwise dispose of, on behalf of itself and the Offerees, up to the number of shares of Restricted Securities covered by the Article III Offer (and the number of Transferor Shares). If all such shares are not sold to the Sale Buyer, the Transferor, at its option, may elect to sell on behalf of itself and the Offerees have not elected to purchase all such number of shares as the Sale Shares within Buyer will purchase, Pro Rata among the applicable election periodTransferor and the Offerees, each Sale Offeree that elected to purchase Sale Shares as nearly as practicable. The material terms of such sale, including, without limitation, price and form of consideration, shall be provided an additional three Business Days, after as set forth in the expiration of such election period, to elect to purchase the remaining Sale SharesInclusion Notice. If the Sale Offerees have not elected to purchase all the Sale Shares by at the end of such 120-day period the second election periodTransferor has not completed the sale or other disposition of all the Transferor Shares and all the Offerees' shares of Restricted Securities proposed to be sold, the Members Transferor shall return to each of the XxXxxx Family Committee Offerees its respective certificates, if any, representing shares of Restricted Securities which the Offerees delivered for sale or other disposition pursuant to this Article III and which were not sold pursuant thereto and the provisions of this Article III shall have the right, continue to be in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchaseeffect.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under Promptly after the applicable xxxxxxx xxxxxxx policy of the Company.
(d) Subject to Section 5.3(e), the closing consummation of the sale or other disposition of the Transferor Shares and shares of Restricted Securities of the Offerees to the Sale Offerees and Members will be held as soon as practicable after Buyer pursuant to the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) and, in any event, no later than (i) 30 days after such expiration, if the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closingArticle III Offer, the Seller will deliver a certificate or certificates representing ownership of Transferor shall notify the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned uponOfferees thereof, and the Closing Date or Buyer shall pay to the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Company. The Seller Transferor and each of the purchasing Sale Offerees their respective portions of the sales price of the shares sold or Members will use all reasonable efforts to promptly make all filingsotherwise disposed of pursuant thereto, give all notices and secure all consents, approvals shall furnish such other evidence of the completion of such sale or other disposition and waivers that the terms thereof as may be required in connection with reasonably requested by the purchase and sale of the Sale SharesOfferees.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and the provisions of this Section 5.3 will continue to apply to any proposed Sale in the future.
Appears in 2 contracts
Samples: Stockholders' Agreement (Gni Group Inc /De/), Stockholders' Agreement (Gni Group Inc /De/)
Sales. (a) In Upon acceptance of the Buyer's Article III Offer, each Offeree shall, within a reasonable period prior to the closing of such Article III Sale, deliver to the Transferor a certificate or certificates representing the shares of Restricted Securities to be sold or otherwise disposed of pursuant to the Article III Offer by such Offeree, free and clear of all Liens, and a limited power-of-attorney authorizing the Transferor to sell or otherwise dispose of such shares pursuant to the terms of the Article III Offer; provided, however, that in the event a Stockholder (that the “Seller”) proposes to sell any Shares (purchase and sale of Restricted Securities contemplated by the “Sale Shares”) owned by such Stockholder to a Person other than a Permitted TransfereeArticle III Offer is not completed, such Seller must first provide notice (the “Sale Notice”certificate(s) and power of attorney shall be returned to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five (5) Business Days after receipt of the Sale Notice, to purchase the Sale Shares owned Offeree promptly upon request by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family CommitteeOfferee.
(b) The Transferor shall have 120 days, commencing on the day the Inclusion Notice is mailed, in which to sell to the Buyer or otherwise dispose of, on behalf of itself and the Offerees, up to the number of shares of Restricted Securities covered by the Article III Offer (and the number of Transferor Shares). If all such shares are not sold to the Sale Buyer, the Transferor, at its option, may elect to sell on behalf of itself and the Offerees have not elected to purchase all such number of shares as the Sale Shares within Buyer will purchase, Pro Rata among the applicable election periodTransferor and the Offerees, each Sale Offeree that elected to purchase Sale Shares as nearly as practicable. The material terms of such sale, including, without limitation, price and form of consideration, shall be provided an additional three Business Days, after as set forth in the expiration of such election period, to elect to purchase the remaining Sale SharesInclusion Notice. If the Sale Offerees have not elected to purchase all the Sale Shares by at the end of such 120-day period the second election periodTransferor has not completed the sale or other disposition of all the Transferor Shares and all the Offerees' shares of Restricted Securities proposed to be sold, the Members Transferor shall return to each of the XxXxxx Family Committee Offerees its respective certificates, if any, representing shares of Restricted Securities which the Offerees delivered for sale or other disposition pursuant to this Article III and which were not sold pursuant thereto and the provisions of this Article III shall have the right, continue to be in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchaseeffect.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under Promptly after the applicable xxxxxxx xxxxxxx policy consummation of the Companysale or other disposition of the Transferor Shares and shares of Restricted Securities of the Offerees to the Buyer pursuant to the Article III Offer, the Transferor shall notify the Offerees thereof, and the Buyer shall pay to the Transferor and each of the Offerees their respective portions of the sales price of the shares sold or otherwise disposed of pursuant thereto, and shall furnish such other evidence of the completion of such sale or other disposition and the terms thereof as may be reasonably requested by the Offerees.
(d) Subject Notwithstanding anything to Section 5.3(e)the contrary contained in this Article III, except for the closing Transferor's obligation to return to each Offeree any certificates representing the Offerees' shares of Restricted Securities there shall be no liability on the part of the sale Transferor to any Stockholder in the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) and, in any event, no later than (i) 30 days after such expiration, if the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares event that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees proposed sale pursuant to this Section 5.3, will terminate and Article III is not consummated for whatever reason. Whether a sale of any shares is effected pursuant to this Article III by the provisions of this Section 5.3 will continue to apply to any proposed Sale Transferor is in the futuresole and absolute discretion of the Transferor.
Appears in 2 contracts
Samples: Investors' Agreement (Analog Acquisition Corp), Investors' Agreement (Allied Digital Technologies Corp)
Sales. In all instances where the Deposit Agreement or the form of ADR refers to a “sale” (aor words of similar import) In of securities or property, the Depositary may, but shall not be obligated, to effect any such sale unless the securities to be sold are listed and publicly traded on a securities exchange or there is a public market for the property to be sold. To the extent the securities are not so listed and publicly traded or there is no public market for the property so distributed by the Company:
(i) the Depositary shall, in the event the Deposit Agreement is terminated and the Depositary holds Deposited Securities that are not listed and publicly traded or property for which there is no public market after the Termination Date, act in accordance with paragraph (17)(b) of the form of ADR in respect of such securities and property; and
(ii) in the event the Depositary or its Custodian receives (A) an Other Distribution under paragraph (10) consisting of securities or property that are not distributed by the Depositary pursuant to this paragraph (10) or (B) a Stockholder distribution of Rights that falls under subparagraph (10)(c)(iii) above, the “Seller”Depositary will not terminate the Deposit Agreement under paragraph (17)(a)(ii)(D) proposes of the form of ADR but, in lieu of termination, the Depositary will, in the case of an Other Distribution, be deemed to sell have sold the aggregate number of securities and/or property so received for nominal value and shall have no obligation to distribute such securities or any Shares (proceeds from the “Sale Shares”) owned by such Stockholder to a Person other than a Permitted Transferee, such Seller must first provide notice (the “Sale Notice”) deemed sale thereof to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five (5) Business Days after receipt of the Sale Notice, to purchase the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committee.
(b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy of the Company.
(d) Subject to Section 5.3(e), the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) Holders and, in any eventthe case of Rights that fall under subparagraph (10)(c)(iii) above, no later than (i) 30 days after allow such expirationRights to lapse. Furthermore, if in the value event the Depositary endeavors to make a sale of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer other securities or documentary stampsproperty, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that securities and/or property may be required sold in a block sale or single lot transaction. The Depositary reserves the right to utilize a division, branch or affiliate of JPMorgan Chase Bank, N.A. to direct, manage and/or execute any public and/or private sale of securities and/or property hereunder. Such division, branch and/or affiliate may charge the Depositary a fee in connection with the purchase and sale such sales, which fee is considered an expense of the Sale Shares Depositary contemplated above and/or under paragraph (7) (Charges of Depositary) . All purchases and sales of securities will be handled by the Depositary in accordance with its then current policies, which date occurs during an open are currently set forth on the “windowDisclosures” under the xxxxxxx xxxxxxx policy page (or successor page) of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if laterXXX.xxx, the last date for location and contents of which the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and the provisions of this Section 5.3 will continue to apply to any proposed Sale in the futureDepositary shall be solely responsible for.
Appears in 1 contract
Samples: Deposit Agreement
Sales. Lender shall consent to (ax) one or more Transfers of the Property in its entirety, or (y) one or more Transfers of direct or indirect interests in the Borrower for which consent is required under this Section 2.9 (any such hereinafter, a “Sale”) to any person or entity provided that, for each Sale, each of the following terms and conditions are satisfied:
(1) No Default and no Event of Default is then continuing hereunder or under any of the other Loan Documents;
(2) Borrower gives Lender written notice of the terms of such prospective Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property or the proposed owner of the direct or indirect interest in the Borrower for which consent is required under this Section 2.9, as applicable (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $5,000. Lender shall have the right to approve or disapprove the proposed Buyer. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer’s experience and track record in owning and operating facilities similar to the Property, the Buyer’s financial strength, the Buyer’s general business standing and the Buyer’s relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable in Lender’s sole discretion and, if given, may be given subject to such conditions as Lender may deem appropriate;
(3) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees and Rating Agency fees, incurred by Lender in connection with the Sale, plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note;
(4) In the event that such Sale is a Stockholder Transfer of the Property in its entirety, the Buyer assumes and agrees to pay the Debt subject to the provisions of Section 6.27 hereof and, in all cases (whether such Sale is a Transfer of the “Seller”) proposes Property in its entirety or a Transfer of direct or indirect interests in the Borrower for which consent is required under this Section 2.9), prior to sell or concurrently with the closing of such Sale, the Buyer executes, without any Shares (the “Sale Shares”) owned by such Stockholder cost or expense to a Person other than a Permitted TransfereeLender, such Seller must first provide notice documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions (the “Sale Notice”including, without limitation, a REMIC opinion) to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five as Lender may require;
(5) Business Days after receipt A party associated with the Buyer approved by Lender in its sole discretion assumes the obligations of the Sale Noticecurrent Indemnitor under its guaranty or indemnity agreement and environmental indemnity agreement and such party associated with the Buyer executes, without any cost or expense to purchase Lender, a substitution agreement or a new guaranty or indemnity agreement or environmental indemnity agreement in form and substance satisfactory to Lender and delivers such legal opinions as Lender may require;
(6) Borrower and the Sale Shares owned Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments (and new financing statements as may be necessary) and any additional documents reasonably requested by Lender;
(7) Borrower delivers to Lender, without any cost or expense to Lender, such replacement policy or endorsements to Lender’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the Seller for time of the Sale, all in form and substance satisfactory to Lender, including, without limitation, a price per Share equal replacement policy or an endorsement or endorsements to Lender’s title insurance policy insuring the lien of this Mortgage, extending the effective date of such policy to the Fair Market Value date of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committee.
execution and delivery (b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy of the Company.
(d) Subject to Section 5.3(e), the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) and, in any event, no later than (i) 30 days after such expiration, if the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, of recording) of the last assumption agreement referenced above in subparagraph (4) of this Section, with no additional exceptions added to such policy, and, in the event that such Sale is a Transfer of the Property in its entirety, insuring that fee simple title to the Property is vested in the Buyer;
(8) Borrower and any current Indemnitor execute and deliver to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the Loan Documents, through and including the date of the closing of the Sale, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the Buyer and any new Indemnitor;
(9) Subject to the provisions of Section 6.27 hereof, such Sale is not construed so as to relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such purchase under Section 5.3(d) Sale, whether or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to same is discovered prior or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior subsequent to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to closing of such Sale, and Borrower executes, without making another offer any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability. In the event that such Transfer is a Sale of the Property in its entirety, Borrower shall be released from and relieved of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale;
(10) Such Sale is not construed so as to relieve any current Indemnitor of its obligations under any guaranty or indemnity agreement for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and each such current Indemnitor executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of each such guaranty and indemnity agreement. In the event that such Transfer is a Sale of the Property in its entirety, each such current Indemnitor shall be released from and relieved of any of its obligations under any guaranty or indemnity agreement executed in connection with the Loan secured hereby for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale;
(11) The Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer’s capacity and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners of the Buyer. In the event that such Sale Offerees pursuant is a Transfer of the Property in its entirety, the Buyer shall be a Single Purpose Entity whose formation documents shall be approved by counsel to this Lender, and who shall comply with the requirements set forth in Section 5.32.29 hereof;
(12) Borrower delivers to Lender confirmation in writing (a “No-Downgrade Confirmation”) from each Rating Agency that such Sale will not result in a qualification, will terminate and the provisions downgrade or withdrawal of this Section 5.3 will continue to apply to any proposed Sale ratings issued in connection with any Secondary Market Transaction (as hereinafter defined) or, in the futureevent the Secondary Market Transaction has not yet occurred, Lender shall, in its sole discretion, have approved the Sale; and
(13) The applicable transfer will not result in an increase in the real property taxes for the Premises and Improvements that would cause the debt service coverage ratio of the Debt with respect to the immediately succeeding twelve (12) month period to be less than the debt service coverage ratio of the Debt for the twelve (12) month period immediately preceding such transfer, in each case as determined by Lender.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (NNN Healthcare/Office REIT, Inc.)
Sales. Lender shall consent to (ax) one or more Transfers of the Property in its entirety, or (y) one or more Transfers of direct or indirect interests in the Borrower for which consent is required under this Section 2.9 (any such hereinafter, a “Sale”) to any person or entity provided that, for each Sale, each of the following terms and conditions are satisfied:
(1) No Default and no Event of Default is then continuing hereunder or under any of the other Loan Documents;
(2) Borrower gives Lender written notice of the terms of such prospective Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property or the proposed owner of the direct or indirect interest in the Borrower for which consent is required under this Section 2.9, as applicable (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $5,000. Lender shall have the right to approve or disapprove the proposed Buyer. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer’s experience and track record in owning and operating facilities similar to the Property, the Buyer’s financial strength, the Buyer’s general business standing and the Buyer’s relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable in Lender’s sole discretion and, if given, may be given subject to such conditions as Lender may deem appropriate;
(3) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees and Rating Agency fees, incurred by Lender in connection with the Sale, plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note;
(4) In the event that such Sale is a Stockholder Transfer of the Property in its entirety, the Buyer assumes and agrees to pay the Debt subject to the provisions of Section 6.27 hereof and, in all cases (whether such Sale is a Transfer of the “Seller”) proposes Property in its entirety or a Transfer of direct or indirect interests in the Borrower for which consent is required under this Section 2.9), prior to sell or concurrently with the closing of such Sale, the Buyer executes, without any Shares (the “Sale Shares”) owned by such Stockholder cost or expense to a Person other than a Permitted TransfereeLender, such Seller must first provide notice documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions (the “Sale Notice”including, without limitation, a REMIC opinion) to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five as Lender may require;
(5) Business Days after receipt A party associated with the Buyer approved by Lender in its sole discretion assumes the obligations of the Sale Noticecurrent Indemnitor under its guaranty or indemnity agreement and environmental indemnity agreement and such party associated with the Buyer executes, without any cost or expense to purchase Lender, a substitution agreement or a new guaranty or indemnity agreement or environmental indemnity agreement in form and substance satisfactory to Lender and delivers such legal opinions as Lender may require;
(6) Borrower and the Sale Shares owned Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments (and new financing statements as may be necessary) and any additional documents reasonably requested by Lender;
(7) Borrower delivers to Lender, without any cost or expense to Lender, such replacement policy or endorsements to Lender’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the Seller for time of the Sale, all in form and substance satisfactory to Lender, including, without limitation, a price per Share equal replacement policy or an endorsement or endorsements to Lender’s title insurance policy insuring the lien of this Security Deed, extending the effective date of such policy to the Fair Market Value date of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committee.
execution and delivery (b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy of the Company.
(d) Subject to Section 5.3(e), the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) and, in any event, no later than (i) 30 days after such expiration, if the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, of recording) of the last assumption agreement referenced above in subparagraph (4) of this Section, with no additional exceptions added to such policy, and, in the event that such Sale is a Transfer of the Property in its entirety, insuring that fee simple title to the Property is vested in the Buyer;
(8) Borrower and any current Indemnitor execute and deliver to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the Loan Documents, through and including the date of the closing of the Sale, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the Buyer and any new Indemnitor;
(9) Subject to the provisions of Section 6.27 hereof, such Sale is not construed so as to relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such purchase under Section 5.3(d) Sale, whether or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to same is discovered prior or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior subsequent to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to closing of such Sale, and Borrower executes, without making another offer any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability. In the event that such Transfer is a Sale of the Property in its entirety, Borrower shall be released from and relieved of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale;
(10) Such Sale is not construed so as to relieve any current Indemnitor of its obligations under any guaranty or indemnity agreement for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and each such current Indemnitor executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of each such guaranty and indemnity agreement. In the event that such Transfer is a Sale of the Property in its entirety, each such current Indemnitor shall be released from and relieved of any of its obligations under any guaranty or indemnity agreement executed in connection with the Loan secured hereby for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale;
(11) The Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer’s capacity and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners of the Buyer. In the event that such Sale Offerees pursuant is a Transfer of the Property in its entirety, the Buyer shall be a Single Purpose Entity whose formation documents shall be approved by counsel to this Lender, and who shall comply with the requirements set forth in Section 5.32.29 hereof;
(12) Borrower delivers to Lender confirmation in writing (a “No-Downgrade Confirmation”) from each Rating Agency that such Sale will not result in a qualification, will terminate and the provisions downgrade or withdrawal of this Section 5.3 will continue to apply to any proposed Sale ratings issued in connection with any Secondary Market Transaction (as hereinafter defined) or, in the futureevent the Secondary Market Transaction has not yet occurred, Lender shall, in its sole discretion, have approved the Sale; and
(13) The applicable transfer will not result in an increase in the real property taxes for the Premises and Improvements that would cause the debt service coverage ratio of the Debt with respect to the immediately succeeding twelve (12) month period to be less than the debt service coverage ratio of the Debt for the twelve (12) month period immediately preceding such transfer, in each case as determined by Lender.
Appears in 1 contract
Samples: Deed to Secure Debt, Security Agreement and Fixture Filing (NNN Healthcare/Office REIT, Inc.)
Sales. Except as otherwise provided herein, to the fullest extent permitted under applicable law, at the election of the Mortgagee, the following provisions shall apply to any sale of the Mortgaged Property hereunder, whether made pursuant to the power of sale under Section 5.02 or under any applicable provision of law, any judicial proceeding or any judgment or decree of foreclosure or sale or otherwise:
(a) In The Mortgagee or the event a Stockholder court officer (whichever is the “Seller”Person conducting any sale) proposes may conduct any number of sales from time to sell time. The power of sale hereunder or with respect hereto shall not be exhausted by any Shares (sale as to any part or parcel of the “Sale Shares”) owned by such Stockholder to a Person other than a Permitted TransfereeMortgaged Property which is not sold, such Seller must first provide notice (unless and until the “Sale Notice”) to the other Stockholders (the “Sale Offerees”), each of which Secured Obligations shall have been paid in full, and shall not be exhausted or impaired by any sale which is not completed or is defective. Any sale may be as a whole or in part or parcels and, as provided in Section 5.03, the right, exercisable within five (5) Business Days after receipt of Mortgagor has waived its right to direct the Sale Notice, to purchase order in which the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice Mortgaged Property or any part or parcel thereof is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committeesold.
(b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall Any sale may be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares postponed or adjourned by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed public announcement at the expiration of any election period, time and place appointed for such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchasesale or for such postponed or adjourned sale without further notice.
(c) Any deadlines stated herein notwithstandingAfter each sale, no election period the Person conducting such sale shall expire during any period when execute and deliver to the purchaser or purchasers at such sale a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy good and sufficient instrument or instruments granting, conveying, assigning, transferring and delivering all right, title and interest of the CompanyMortgagor in and to the Mortgaged Property sold and shall receive the proceeds of such sale and apply the same as provided in Section 5.06. The Mortgagor hereby irrevocably appoints the Person conducting such sale as the attorney-in-fact of the Mortgagor (with full power to substitute any other Person in its place as such attorney-in-fact) to act in the name of the Mortgagor or, at the option of the Person conducting such sale, in such Person's own name, to make without warranty by such Person any conveyance, assignment, transfer or delivery of the Mortgaged Property sold, and to execute, acknowledge and deliver any instrument of conveyance, assignment, transfer or delivery or other document in connection therewith or to take any other action incidental thereto, as the Person conducting such sale shall deem appropriate in its discretion; and the Mortgagor hereby irrevocably authorizes and directs any other Person to rely and act upon the foregoing appointment and a certificate of the Person conducting such sale that such Person is authorized to act hereunder. Nevertheless, upon the request of such attorney-in-fact the Mortgagor shall promptly execute, acknowledge and deliver any documentation which such attorney- in-fact may require for the purpose of ratifying, confirming or effectuating the powers granted hereby or any such conveyance, assignment, transfer or delivery by such attorney-in-fact.
(d) Subject Any statement of fact or other recital made in any instrument referred to in Section 5.3(e)5.05(c) given by the Person conducting any sale as to the nonpayment of any Secured Obligation, the closing occurrence of any Event of Default, the amount of the sale Secured Obligations due and payable, the request to the Sale Offerees and Members will be held as soon as practicable after Mortgagee to sell, the expiration of all notice of the applicable election periods under Section 5.3(a)time, (b) place and (c) and, in any event, no later than (i) 30 days after such expiration, if terms of sale and of the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closingMortgaged Property to be sold having been duly given, the Seller will deliver a certificate refusal, failure or certificates representing ownership inability of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificatedMortgagee to act, the Seller will cause appointment of any substitute or successor agent, any other act or thing having been duly done by the Mortgagor, the Mortgagee or any other such Shares to Person, shall be transferred by book-entry transfer or taken as conclusive and binding against all other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member Persons as evidence of the Sale Price truth of the facts so stated or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of fundsrecited.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with receipt by the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and Person conducting any sale of the Sale Shares purchase money paid at such sale shall be sufficient discharge therefor to any purchaser of any Mortgaged Property sold, and which date occurs during an open “window” under no such purchaser, or its representatives, grantees or assigns, after paying such purchase price and receiving such receipt, shall be bound to see to the xxxxxxx xxxxxxx policy application of such purchase price or any part thereof upon or for any trust or purpose of this Mortgage or the Company. The Seller and each other Financing Documents, or, in any manner whatsoever, be answerable for any loss, misapplication or nonapplication of any such purchase money or be bound to inquire as to the purchasing Sale Offerees authorization, necessity, expediency or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale regularity of the Sale Sharessuch sale.
(f) Each Seller will have the right beginning with the expiration Subject to mandatory provisions of applicable law, any sale shall operate to divest all of the last election period estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of the Mortgagor in and to the Mortgaged Property sold, and shall be a perpetual bar both at law and in equity against the Mortgagor and any and all Persons claiming such Mortgaged Property or any interest therein by, through or under the Mortgagor.
(g) At any sale, the Mortgagee may bid for and acquire the Mortgaged Property sold and, in lieu of paying cash therefor, may make settlement for the purchase price by crediting or causing the Secured Parties to credit against the Secured Obligations, including the expenses of the sale and the cost of any enforcement proceeding hereunder, the amount of the bid made therefor to the extent necessary to satisfy such bid.
(h) If the Mortgagor or any Person claiming by, through or under the Mortgagor shall transfer or fail to surrender possession of the Mortgaged Property, after the exercise by the Mortgagee of the Mortgagee's remedies under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing of such purchase under Section 5.3(d5.02(a)(v) or Section 5.3(e) (after any sale of the Mortgaged Property pursuant hereto, then the Mortgagor or such later date being Person shall be deemed a tenant at sufferance of the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase purchaser at a price equal to or greater than that in the Sale Noticesuch sale, subject to compliance with eviction by means of summary process for possession of land, or subject to any other right or remedy available hereunder or under applicable xxxxxxx xxxxxxx policy law.
(i) Upon any sale, it shall not be necessary for the Person conducting such sale to have any Mortgaged Property being sold present or constructively in its possession.
(j) If a sale hereunder shall be commenced by the Mortgagee, the Mortgagee may at any time before the sale abandon the sale, and may institute suit for the collection of the Company. If such Sale Shares are not sold prior to Secured Obligations or for the Sale Expiration Dateforeclosure of this Mortgage; or if the Mortgagee shall institute a suit for collection of the Secured Obligations or the foreclosure of this Mortgage, all rights to the Mortgagee may at any time before the entry of final judgment in said suit dismiss the same and sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and Mortgaged Property in accordance with the provisions of this Section 5.3 will continue Mortgage.
(k) Following any judicial sale of the real property covered by the Mortgage, the redemption period shall be limited to apply to any proposed Sale in one (1) month from and after the futuredate of such judicial sale.
Appears in 1 contract
Samples: Debt Agreement (Vencor Inc)
Sales. Seller hereby engages Advisor as Seller’s agent to use its reasonable best efforts to cause to be sold during the term of this Agreement up to $43,600,000 of Stock (the “Total Maximum Dollar Amount”) beneficially owned by Seller and held in various trusts for the benefit of Seller and members of his family, as provided in and subject to the conditions of this Agreement and the Sales Program. Advisor shall determine the timing, price and other terms of each specific sale transaction in its sole discretion and without influence from Seller, subject to the following conditions:
(a) In Advisor shall use the event a Stockholder (the “Seller”) proposes services of such broker or brokers as it may elect from time to sell any Shares (the “Sale Shares”) owned by such Stockholder time to a Person other than a Permitted Transferee, such Seller must first provide notice (the “Sale Notice”) effect each specific sale transaction to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five (5) Business Days after receipt of the Sale Notice, be made pursuant to purchase the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committeethis Agreement.
(b) If Advisor shall use its reasonable professional judgment in causing transactions to be executed, with a goal of obtaining the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election periodhighest aggregate sales proceeds; provided, each Sale Offeree that elected to purchase Sale Shares Advisor shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end take into account daily trading volumes and average weekly trading volumes of the second election periodStock, the Members historical trading prices of the XxXxxx Family Committee shall have the rightStock and any other factors which Advisor, in equal shares or as they otherwise agreeits reasonable professional judgment, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration deems of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchaseimportance.
(c) Any deadlines stated herein notwithstandingSubject in each case to Section 2(d) and 2(e) below,
(1) Advisor shall cause to be sold shares of Stock held in certain trusts for the benefit of Seller in the following manner: first, no election period Advisor shall expire during any period when a trading cause to be sold all of the 401,462 shares of Stock held in trust designated as “windowTrust #101 under Agreement dated May 22, 1990” is closed (“Trust #101”); second, Advisor shall cause to be sold all of the 55,320 shares of Stock held in trust designated as “Wxxxxxx Xxxxxxx, Xx. Residuary Trust dated May 2, 2000” (the “WWJr. Residuary Trust”); and third, Advisor shall cause to be sold such number of shares of Stock held in trust designated as “Wxxxxxx Xxxxxxx, Xx. Fund under the applicable xxxxxxx xxxxxxx policy Will of Pxxxxx X. Xxxxxxx” as will yield sales proceeds which, when added to the proceeds of the Companysales of Stock from Trust #101 and the WWJr. Residuary Trust, equal $29,200,000 (“Seller’s Maximum Dollar Amount”).
(2) Advisor shall cause to be sold shares of Stock held in certain trusts for the benefit of Seller’s cousin, Hxxxx X. Xxxxxxx (“HAR”), in the following manner: first, Advisor shall cause to be sold all of the 135,216 shares of Stock held in trust designated as “Hxxxx X. Xxxxxxx Fund under the Will of Pxxxxx X. Xxxxxxx” (the “HAR Fund”); and second, Advisor shall cause to be sold such number of shares of Stock held in trust designated as “Hxxxx X. Xxxxxxx Fund under the Will of Hxxxx X. Xxxxxxx” as will yield sales proceeds which, when added to the proceeds of the sales of Stock from the HAR Fund, equal $7,200,000 (“HAR’s Maximum Dollar Amount”).
(3) Advisor shall cause to be sold shares of Stock held in certain trusts for the benefit of Seller’s cousin, Misdee Wrigley (“MW”), in the following manner: first, Advisor shall cause to be sold all of the 135,216 shares of Stock held in trust designated as “Misdee Wrigley Fund under the Will of Pxxxxx X. Xxxxxxx” (the “MW Fund”); and second, Advisor shall cause to be sold such number of shares of Stock held in trust designated as “Misdee Wrigley Fund under the Will of Hxxxx X. Xxxxxxx” as will yield sales proceeds which, when added to the proceeds of the sales of Stock from the MW Fund, equal $7,200,000 (“MW’s Maximum Dollar Amount”).
(d) Subject Each specific sale transaction to Section 5.3(e), be made pursuant to this Agreement at a specific sale price shall be effected in a proportionate manner among the closing of the sale foregoing trust beneficiaries’ interests such that Advisor shall cause to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) and, in any event, no later than sold (i) 30 days after such expirationfrom trusts for the benefit of Seller, if Seller’s Pro Rata Interest (as defined below) multiplied by the value number of such Sale Shares is less than $10 millionshares of Stock comprising a specific sale transaction, (ii) from trusts for the benefit of HAR, HAR’s Pro Rata Interest multiplied by the number of shares of Stock comprising a specific sale transaction, and (iiiii) 60 days after such expirationfrom trusts for the benefit of MW, MW’s Pro Rata Interest multiplied by the number of shares of Stock comprising a specific sale transaction; provided, that if the value apportionment herein described results in fractional shares, then the number of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares shares to be transferred sold by book-entry transfer or other similar means, HAR and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of MW shall be rounded up to the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date nearest whole share and the obligation to consummate a sale prior to the Sale Expiration Date will remainder shall be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Companysold by Seller. The Seller and each order of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may priority of sales from a trust beneficiary’s multiple trust accounts shall be required as set forth in connection with the purchase and sale of the Sale SharesSection 2(c) above.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and the provisions of this Section 5.3 will continue to apply to any proposed Sale in the future.
Appears in 1 contract
Sales. (a) In With a view to making available to Holders of ----- Registrable Securities the event benefits of certain rules and regulations of the Commission which may permit the sale of the Registrable Securities to the public without registration, the Company agrees at all times prior to the termination of this Agreement.
(i) make and keep public information available, as those terms are understood and defined in Rule 144 and Rule 144A;
(ii) use its best efforts to file with the Commission in a Stockholder timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and
(iii) furnish to each Holder so long as such Holder owns any Registrable Securities forthwith, upon written request, a written statement by the “Seller”) proposes Company that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act (to sell the extent that it is then subject to any Shares (such reporting requirements), a copy of the “Sale Shares”) owned most recent annual and quarterly report of the Company, and such other reports and documents filed by the Company under the Exchange Act as may be reasonably requested by such Stockholder to a Person other than a Permitted Transferee, such Seller must first provide notice (Holder in connection with availing the “Sale Notice”) to the other Stockholders (the “Sale Offerees”), each Holder of which shall have the right, exercisable within five (5) Business Days after receipt any rule or regulation of the Sale Notice, to purchase Commission permitting the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value selling of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committeesecurities without registration.
(b) If Each Holder hereby agrees that any and all sales made by such Holder (other than pursuant to Section 3), whether pursuant to a Shelf Registration Statement, Rule 144 or any other exemption from the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end registration requirements of the second election periodSecurities Act, the Members of the XxXxxx Family Committee shall have the rightnot exceed, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of aggregate with all other Holders in any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy calendar quarter of the Company.
(d) Subject , that number of shares set forth on Schedule A hereto with respect to Section 5.3(e)such calendar quarter; provided, the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) andthat, in any eventthe event the Shelf Registration Statement is not effective by May 15, no later than (i) 30 days after such expiration, if the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon1999, and the Closing Date or shares saleable under Schedule A during the Sale Expiration Dateperiod commencing on May 15, as applicable1999 and ending on June 15, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares 1999 are not sold prior pursuant to Section 3 hereof, then such shares shall be added to the Sale Expiration Date, all rights to sell such Sale Shares shares saleable in the next calendar quarter pursuant to Schedule A; provided, however, that commencing with the second calendar quarter of 2000, such Sale, without making another offer number of shares shall equal the greater of that number of shares specified specified previously in this sentence and that number of shares equal to 20% of the Sale Offerees pursuant to this Section 5.3, will terminate and "Average Weekly Trading Volume" (as hereinafter defined) for the provisions four full calendar weeks immediately preceding the first day of this Section 5.3 will continue to apply to any proposed Sale in the future.such calendar quarter. For purposes of the
Appears in 1 contract
Sales. (a) In By execution of this Agreement, each Seller does hereby transfer, assign, set over and otherwise convey to Buyer, without recourse except as provided herein, all its right, title and interest in, to and under, the event a Stockholder following (the “SellerTransferred Assets”): (i) proposes the Receivables existing at the opening of business on the Closing Date, and thereafter created from time to sell any Shares time (the “Sale Shares”) owned by such Stockholder to a Person other than any Receivables arising in an Account that is a Permitted TransfereeSuspended Account at such time or a Designated ABL Account) until the Agreement Termination Date (or, if applicable, the Seller Termination Date relating to such Seller must first provide notice (the “Sale Notice”) to the other Stockholders (the “Sale Offerees”Seller), each of which shall have the right(ii) with respect to any Designated ABL Account, exercisable within five (5x) Business Days after receipt of the Sale Notice, to purchase the Sale Shares owned by the Seller for a price per Share Principal Receivables in an amount equal to the Fair Market Value applicable Sold Percentage of all Principal Receivables existing at the Sale Shares as opening of business on the date such Notice related Addition Date and all Non-Principal Receivables created on and after the Addition Date relating thereto, and (y) on each day on which the applicable Seller originates additional Principal Receivables, the applicable Sold Percentage of all Principal Receivables thereafter created from time to time (other than any Receivables arising in an Account that is sent a Suspended Account) until the Agreement Termination Date (or, if lowerapplicable, at the price stated Seller Termination Date relating to such Seller) and all Non-Principal Receivables relating thereto, (iii) the Collateral Security and Collections with respect to all Transferred Receivables and related Recoveries, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto, all Insurance Proceeds relating thereto and all amounts received in connection with Credit Insurance relating thereto or the proceeds thereof, (iv) without limiting the generality of the foregoing or the following, all of such Seller’s rights to receive payments from any Dealer in respect of such Receivables and (v) all proceeds of all of the foregoing. The foregoing does not constitute and is not intended to result in the Sale Noticecreation or assumption by Buyer of any obligation of any Seller or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation under the Financing Agreements, the Floorplan Agreements, any Participation Agreement or any Syndicated Financing Agreement or any obligation to any Dealer or any Manufacturer. For the avoidance of doubt, notwithstanding the foregoing conveyance, each Seller shall retain the right or obligation, as applicable, to make all extensions of credit pursuant to the terms of the related Financing Agreements, and subject to Section 6.3(b), shall retain the right to enter into amendments to the Financing Agreements. The Sale Notice foregoing conveyance shall also be given by effective (x) on the Seller Closing Date, as to all Transferred Assets then existing (it being understood and agreed that, in the case of this clause (x), the Collections transferred to Buyer shall include all Collections since July 31, 2004), and (y) on each Member of Purchase Date, as to all Transferred Assets arising since the XxXxxx Family Committeeprior Purchase Date.
(b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election periodEach Seller agrees, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Daysat its own expense, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy of the Company.
(d) Subject to Section 5.3(e), the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) and, in any event, no later than (i) 30 days after such expirationon or prior to (x) the Closing Date, in the case of the Initial Accounts, (y) the applicable Addition Date, in the case of Additional Accounts, and (z) the applicable Removal Date, in the case of Removed Accounts, to indicate, or cause to be indicated, in the appropriate computer files that Receivables created (or reassigned, if applicable, in the value case of Removed Accounts) in connection with the Accounts have been conveyed to Buyer pursuant to this Agreement (or conveyed to a Seller or its designee, if applicable, in accordance with Section 2.7, in the case of Removed Accounts) by including, or causing to be included, in such Sale Shares is less than $10 millioncomputer files a code so identifying each such Account (or, in the case of Removed Accounts, deleting, or causing to be deleted, such code thereafter) and (ii) 60 days after such expirationexcept as provided in Section 2.7(b), if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate on or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upondate referred to in clauses (i)(x), and the Closing Date (y) or the Sale Expiration Date(z), as applicable, will to deliver to Buyer an Account Schedule. The initial such Account Schedule, as supplemented from time to time to reflect Additional Accounts and Removed Accounts, shall be extended marked as Schedule 1 to this Agreement and is hereby incorporated into and made a date which part of this Agreement. Once the code referenced in clause (i) of this paragraph has been included with respect to any Account, each Seller further agrees not to permit such code to be altered during the remaining term of this Agreement unless and until (x) such Account becomes a Removed Account or a Suspended Account or any Suspended Account subsequently ceases to be a Suspended Account, or (y) such Seller shall have delivered to Buyer at least thirty (30) days’ prior written notice of its intention to do so and has taken such action as is five Business Days following, necessary or advisable to cause the receipt interest of all governmental and regulatory consents, approvals or waivers that may Buyer in the Transferred Receivables to continue to be required in connection perfected with the purchase priority required by this Agreement. If any Seller makes any change to the account number (or other alpha-numeric account identifier) reflected in the Account Schedule for any Account, such Seller will promptly deliver an update to the Account Schedule to Buyer and sale take all action necessary or advisable to cause the interest of the Sale Shares and which date occurs during an open “window” under Buyer in the xxxxxxx xxxxxxx policy of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts related Transferred Receivables to promptly make all filings, give all notices and secure all consents, approvals and waivers that may continue to be required in connection perfected with the purchase and sale of the Sale Sharespriority required by this Agreement.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and the provisions of this Section 5.3 will continue to apply to any proposed Sale in the future.
Appears in 1 contract
Sales. In all instances where the Deposit Agreement or the form of ADR refers to a "sale" (aor words of similar import) In of securities or property, the Depositary may, but shall not be obligated, to effect any such sale unless the securities to be sold are listed and publicly traded on a securities exchange or there is a public market for the property to be sold. To the extent the securities are not so listed and publicly traded or there is no public market for the property so distributed by the Company:
(i) the Depositary shall, in the event the Deposit Agreement is terminated and the Depositary holds Deposited Securities that are not listed and publicly traded or property for which there is no public market after the Termination Date, act in accordance with paragraph (17)(b) of the form of ADR in respect of such securities and property; and
(ii) in the event the Depositary or its Custodian receives (A) an Other Distribution under paragraph (10) consisting of securities or property that are not distributed by the Depositary pursuant to this paragraph (10) or (B) a Stockholder distribution of Rights that falls under subparagraph (10)(c)(iii) above, the “Seller”Depositary will not terminate the Deposit Agreement under paragraph (17)(a)(ii)(D) proposes of the form of ADR but, in lieu of termination, the Depositary will, in the case of an Other Distribution, be deemed to sell have sold the aggregate number of securities and/or property so received for nominal value and shall have no obligation to distribute such securities or any Shares (proceeds from the “Sale Shares”) owned by such Stockholder to a Person other than a Permitted Transferee, such Seller must first provide notice (the “Sale Notice”) deemed sale thereof to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five (5) Business Days after receipt of the Sale Notice, to purchase the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committee.
(b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy of the Company.
(d) Subject to Section 5.3(e), the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) Holders and, in any eventthe case of Rights that fall under subparagraph (10)(c)(iii) above, no later than (i) 30 days after allow such expirationRights to lapse. Furthermore, if in the value event the Depositary endeavors to make a sale of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer other securities or documentary stampsproperty, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that securities and/or property may be required sold in a block sale or single lot transaction. The Depositary reserves the right to utilize a division, branch or affiliate of JPMorgan Chase Bank, N.A. to direct, manage and/or execute any public and/or private sale of securities and/or property hereunder. Such division, branch and/or affiliate may charge the Depositary a fee in connection with the purchase and sale such sales, which fee is considered an expense of the Sale Shares Depositary contemplated above and/or under paragraph (7) (Charges of Depositary). All purchases and sales of securities will be handled by the Depositary in accordance with its then current policies, which date occurs during an open “window” under are currently set forth on the xxxxxxx xxxxxxx policy "Disclosures" page (or successor page) of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if laterAXX.xxx, the last date for location and contents of which the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and the provisions of this Section 5.3 will continue to apply to any proposed Sale in the futureDepositary shall be solely responsible for.
Appears in 1 contract
Samples: Deposit Agreement (JPMorgan Chase Bank, N.A. - ADR Depositary)
Sales. Lender shall consent to (ax) one or more Transfers of the Property in its entirety, or (y) one or more Transfers of direct or indirect interests in the Borrower for which consent is required under this Section 2.9 (any such hereinafter, a “Sale”) to any person or entity provided that, for each Sale, each of the following terms and conditions are satisfied:
(1) No Default and no Event of Default is then continuing hereunder or under any of the other Loan Documents;
(2) Borrower gives Lender written notice of the terms of such prospective Sale not less than sixty (60) days before the date on which such Sale is scheduled to close and, concurrently therewith, gives Lender all such information concerning the proposed transferee of the Property or the proposed owner of the direct or indirect interest in the Borrower for which consent is required under this Section 2.9, as applicable (hereinafter, “Buyer”) as Lender would require in evaluating an initial extension of credit to a borrower and pays to Lender a non-refundable application fee in the amount of $5,000. Lender shall have the right to approve or disapprove the proposed Buyer. In determining whether to give or withhold its approval of the proposed Buyer, Lender shall consider the Buyer’s experience and track record in owning and operating facilities similar to the Property, the Buyer’s financial strength, the Buyer’s general business standing and the Buyer’s relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable in Lender’s sole discretion and, if given, may be given subject to such conditions as Lender may deem appropriate;
(3) Borrower pays Lender, concurrently with the closing of such Sale, a non-refundable assumption fee in an amount equal to all out-of-pocket costs and expenses, including, without limitation, reasonable attorneys’ fees and Rating Agency fees, incurred by Lender in connection with the Sale, plus an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note;
(4) In the event that such Sale is a Stockholder Transfer of the Property in its entirety, the Buyer assumes and agrees to pay the Debt subject to the provisions of Section 6.27 hereof and, in all cases (whether such Sale is a Transfer of the “Seller”) proposes Property in its entirety or a Transfer of direct or indirect interests in the Borrower for which consent is required under this Section 2.9), prior to sell or concurrently with the closing of such Sale, the Buyer executes, without any Shares (the “Sale Shares”) owned by such Stockholder cost or expense to a Person other than a Permitted TransfereeLender, such Seller must first provide notice documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption and delivers such legal opinions (the “Sale Notice”including, without limitation, a REMIC opinion) to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five as Lender may require;
(5) Business Days after receipt A party associated with the Buyer approved by Lender in its sole discretion assumes the obligations of the Sale Noticecurrent Indemnitor under its guaranty or indemnity agreement and environmental indemnity agreement and such party associated with the Buyer executes, without any cost or expense to purchase Lender, a substitution agreement or a new guaranty or indemnity agreement or environmental indemnity agreement in form and substance satisfactory to Lender and delivers such legal opinions as Lender may require;
(6) Borrower and the Sale Shares owned Buyer execute, without any cost or expense to Lender, new financing statements or financing statement amendments (and new financing statements as may be necessary) and any additional documents reasonably requested by Lender;
(7) Borrower delivers to Lender, without any cost or expense to Lender, such replacement policy or endorsements to Lender’s title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may deem necessary at the Seller for time of the Sale, all in form and substance satisfactory to Lender, including, without limitation, a price per Share equal replacement policy or an endorsement or endorsements to Lender’s title insurance policy insuring the lien of this Deed of Trust, extending the effective date of such policy to the Fair Market Value date of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committee.
execution and delivery (b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end of the second election period, the Members of the XxXxxx Family Committee shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy of the Company.
(d) Subject to Section 5.3(e), the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a), (b) and (c) and, in any event, no later than (i) 30 days after such expiration, if the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, of recording) of the last assumption agreement referenced above in subparagraph (4) of this Section, with no additional exceptions added to such policy, and, in the event that such Sale is a Transfer of the Property in its entirety, insuring that fee simple title to the Property is vested in the Buyer;
(8) Borrower and any current Indemnitor execute and deliver to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors, employees and agents, from all claims and liability relating to the transactions evidenced by the Loan Documents, through and including the date of the closing of the Sale, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the Buyer and any new Indemnitor;
(9) Subject to the provisions of Section 6.27 hereof, such Sale is not construed so as to relieve Borrower of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such purchase under Section 5.3(d) Sale, whether or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to same is discovered prior or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior subsequent to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to closing of such Sale, and Borrower executes, without making another offer any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability. In the event that such Transfer is a Sale of the Property in its entirety, Borrower shall be released from and relieved of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale;
(10) Such Sale is not construed so as to relieve any current Indemnitor of its obligations under any guaranty or indemnity agreement for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale, and each such current Indemnitor executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of each such guaranty and indemnity agreement. In the event that such Transfer is a Sale of the Property in its entirety, each such current Indemnitor shall be released from and relieved of any of its obligations under any guaranty or indemnity agreement executed in connection with the Loan secured hereby for any acts or events occurring or obligations arising after the closing of such Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such Sale;
(11) The Buyer shall furnish, if the Buyer is a corporation, partnership or other entity, all appropriate papers evidencing the Buyer’s capacity and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of the Buyer and of the entities, if any, which are partners of the Buyer. In the event that such Sale Offerees pursuant is a Transfer of the Property in its entirety, the Buyer shall be a Single Purpose Entity whose formation documents shall be approved by counsel to this Lender, and who shall comply with the requirements set forth in Section 5.32.29 hereof;
(12) Borrower delivers to Lender confirmation in writing (a “No-Downgrade Confirmation”) from each Rating Agency that such Sale will not result in a qualification, will terminate and the provisions downgrade or withdrawal of this Section 5.3 will continue to apply to any proposed Sale ratings issued in connection with any Secondary Market Transaction (as hereinafter defined) or, in the futureevent the Secondary Market Transaction has not yet occurred, Lender shall, in its sole discretion, have approved the Sale; and
(13) The applicable transfer will not result in an increase in the real property taxes for the Premises and Improvements that would cause the debt service coverage ratio of the Debt with respect to the immediately succeeding twelve (12) month period to be less than the debt service coverage ratio of the Debt for the twelve (12) month period immediately preceding such transfer, in each case as determined by Lender.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement and Fixture Filing (NNN Healthcare/Office REIT, Inc.)
Sales. The Borrower, its Subsidiaries and Affiliates shall not, ----- and shall not permit the Guarantors, their Subsidiaries and Affiliates to, sell, assign, transfer, lease, convey, abandon or otherwise dispose of, voluntarily or involuntarily, any Properties, whether now owned or hereafter acquired, or any income or profits therefrom, except:
(a) In The Borrower, the event a Stockholder (the “Seller”) proposes to Guarantors, their respective Subsidiaries and/or Affiliates may sell any Shares (the “Sale Shares”) owned by such Stockholder to a Person other than a Permitted Transferee, such Seller must first provide notice (the “Sale Notice”) to the other Stockholders (the “Sale Offerees”), each of which shall have the right, exercisable within five (5) Business Days after receipt of the Sale Notice, to purchase the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated inventory in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member ordinary course of the XxXxxx Family Committee.their respective business;
(b) If the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end of the second election periodThe Borrower, the Members Guarantors, their respective Subsidiaries and/or Affiliates may dispose of Properties which are obsolete or no longer useful in their respective businesses; provided that (1) such disposition shall -------- ---- not result in a Material Adverse Effect and (2) the XxXxxx Family Committee Borrower shall have the right, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration promptly report any disposition of any election periodsuch Properties to the Lender where, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected whether singularly or in aggregate, proceeds are equal to purchase.or greater than $5,000,000.00;
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy The Borrower may transfer all of the Company.assets of Blue Lobster to the Borrower or any of the Guarantors;
(d) Subject to Section 5.3(e)The Borrower may sell its accounts receivable without recourse in the ordinary course of its business; provided, the closing of the sale to the Sale Offerees and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(a)however, (b1) no Event -------- ------- of Default or Potential Event of Default shall have occurred and be continuing, (2) such accounts receivable shall be sold on commercially reasonable terms in arms' length transactions and (c3) and, in any event, no later than (i) 30 days after such expiration, if the value Borrower shall have given the Lender express written notice of such Sale Shares is less than $10 million, and sale within thirty (ii30) 60 days after such expiration, if from the value completion of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares to be transferred by book-entry transfer or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of funds.sale; and
(e) The obligation Borrower, any of a Seller the Guarantors and/or any Person whose authorized, issued and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior outstanding stock has been pledged to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended Lender pursuant to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale any of the Sale Shares and which date occurs during an open “window” under Pledge of Stock Agreements may transfer any of its respective assets to the xxxxxxx xxxxxxx policy Borrower, any of the Company. The Seller Guarantors and/or any Person whose authorized, issued and each outstanding stock has been pledged to the Lender pursuant to any of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale Pledge of the Sale SharesStock Agreements.
(f) Each Seller will have Any Person (1) whose financial performance is represented in the right beginning with consolidated financial statements of Saga Systems and (2) which is not the expiration Borrower, a Guarantor or a Person whose authorized, issued and outstanding stock has been pledged to the Lender pursuant to any of the last election period under Section 5.3(a)Pledge of Stock Agreements, (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing may transfer any of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, its assets to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that any other Person whose financial performance is represented in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy consolidated financial statements of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and the provisions of this Section 5.3 will continue to apply to any proposed Sale in the futureSaga Systems.
Appears in 1 contract
Samples: Revolving Credit Loan Agreement (Saga Systems Inc /De/)
Sales. (a) In With a view to making available to Holders of ----- Registrable Securities the event benefits of certain rules and regulations of the Commission which may permit the sale of the Registrable Securities to the public without registration, the Company agrees at all times prior to the termination of this Agreement:
(i) make and keep public information available, as those terms are understood and defined in Rule 144 and Rule 144A;
(ii) use its best efforts to file with the Commission in a Stockholder timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and
(iii) furnish to each Holder so long as such Holder owns any Registrable Securities forthwith, upon written request, a written statement by the “Seller”) proposes Company that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act (to sell the extent that it is then subject to any Shares (such reporting requirements), a copy of the “Sale Shares”) owned most recent annual and quarterly report of the Company, and such other reports and documents filed by the Company under the Exchange Act as may be reasonably requested by such Stockholder to a Person other than a Permitted Transferee, such Seller must first provide notice (Holder in connection with availing the “Sale Notice”) to the other Stockholders (the “Sale Offerees”), each Holder of which shall have the right, exercisable within five (5) Business Days after receipt any rule or regulation of the Sale Notice, to purchase Commission permitting the Sale Shares owned by the Seller for a price per Share equal to the Fair Market Value selling of the Sale Shares as of the date such Notice is sent or, if lower, at the price stated in the Sale Notice. The Sale Notice shall also be given by the Seller to each Member of the XxXxxx Family Committeesecurities without registration.
(b) If Each Holder hereby agrees that any and all sales made by such Holder, whether pursuant to Section 2 hereof, Rule 144 or any other exemption from the Sale Offerees have not elected to purchase all the Sale Shares within the applicable election period, each Sale Offeree that elected to purchase Sale Shares shall be provided an additional three Business Days, after the expiration of such election period, to elect to purchase the remaining Sale Shares. If the Sale Offerees have not elected to purchase all the Sale Shares by the end registration requirements of the second election periodSecurities Act, the Members of the XxXxxx Family Committee shall have the rightnot exceed, in equal shares or as they otherwise agree, to purchase the remaining Sale Shares as provided above, exercisable within five Business Days after the expiration of the second election period. If the offer to sell the Sale Shares is oversubscribed at the expiration of aggregate with all other Holders in any election period, such Sale Shares will be allocated on a pro rata basis among the Sale Offerees and Members based on the number of Sale Shares that each has elected to purchase.
(c) Any deadlines stated herein notwithstanding, no election period shall expire during any period when a trading “window” is closed under the applicable xxxxxxx xxxxxxx policy calendar quarter of the Company.
, that number of shares set forth on Schedule A hereto with respect to such calendar quarter; provided, that in the event the Holders are unable to sell any shares saleable during a calendar quarter pursuant to Schedule A due to the actions of the Company (d) Subject to Section 5.3(eincluding subsection 2(d)(iii), the closing of the sale to the Sale Offerees Section 6 and Members will be held as soon as practicable after the expiration of all of the applicable election periods under Section 5.3(asubsection 11(d) hereunder), (b) and (c) andsuch shares shall be deemed saleable in the immediately succeeding calendar quarter, in addition to any eventother shares saleable in such quarter pursuant to Schedule A. In addition, no later than (i) 30 days after all sales made by any Holder shall only be effected through X.X. Xxxxxx & Company or such expirationother underwriter which makes a market in the Common Stock which may be designated by the Company. Furthermore, if the value of such Sale Shares is less than $10 million, and (ii) 60 days after such expiration, if the value of such Sale Shares is more than $10 million (the “Closing Date”). Contemporaneously with such closing, the Seller will deliver a certificate or certificates representing ownership of the Sale Shares, properly endorsed for transfer and with all necessary transfer or documentary stamps, if any, affixed or if the Sale Shares are not certificated, the Seller will cause such Shares Schedule A shall be amended to be transferred by book-entry transfer reflect any stock splits or other similar means, and in each case free and clear of all liens, restrictions or encumbrances against receipt from each purchasing Sale Offeree or Member of the Sale Price or allocable portion thereof in cash or by certified or bank cashier’s check or wire or interbank transfer of fundscorporate events.
(e) The obligation of a Seller and a purchasing Sale Offeree or Member to proceed with the closing on the Closing Date and the obligation to consummate a sale prior to the Sale Expiration Date will be conditioned upon, and the Closing Date or the Sale Expiration Date, as applicable, will be extended to a date which is five Business Days following, the receipt of all governmental and regulatory consents, approvals or waivers that may be required in connection with the purchase and sale of the Sale Shares and which date occurs during an open “window” under the xxxxxxx xxxxxxx policy of the Company. The Seller and each of the purchasing Sale Offerees or Members will use all reasonable efforts to promptly make all filings, give all notices and secure all consents, approvals and waivers that may be required in connection with the purchase and sale of the Sale Shares.
(f) Each Seller will have the right beginning with the expiration of the last election period under Section 5.3(a), (b) and (c) and continuing until 90 days thereafter or, if later, the last date for the closing of such purchase under Section 5.3(d) or Section 5.3(e) (such later date being the “Sale Expiration Date”) as applicable, to sell all Sale Shares that the Sale Offerees and Members do not elect to purchase at a price equal to or greater than that in the Sale Notice, subject to compliance with any applicable xxxxxxx xxxxxxx policy of the Company. If such Sale Shares are not sold prior to the Sale Expiration Date, all rights to sell such Sale Shares pursuant to such Sale, without making another offer to the Sale Offerees pursuant to this Section 5.3, will terminate and the provisions of this Section 5.3 will continue to apply to any proposed Sale in the future.
Appears in 1 contract