Payments May Be Paid Prior to Dissolution Nothing contained in this Article Ten or elsewhere in this Indenture shall prevent (i) the Company, except under the conditions described in Sections 10.02 and 10.03, from making payments at any time for the purpose of making payments of principal of and interest on the Notes, or from depositing with the Trustee any moneys for such payments, or (ii) in the absence of actual knowledge by the Trustee that a given payment would be prohibited by Section 10.02 or 10.03, the application by the Trustee of any moneys deposited with it for the purpose of making such payments of principal of, and interest on, the Notes to the Holders entitled thereto unless at least two Business Days prior to the date upon which such payment would otherwise become due and payable a Trust Officer shall have actually received the written notice provided for in the third sentence of Section 10.02(a) or in Section 10.07 (provided that, notwithstanding the foregoing, such application shall otherwise be subject to the provisions of the first sentence of Section 10.02(a), 10.02(b) and Section 10.03
Limitations on Payments Made in Dissolution Except as otherwise specifically provided in this Agreement, the Member shall only be entitled to look solely to the assets of Company for the return of its positive Capital Account balance and shall have no recourse for its Capital Contribution and/or share of net income (upon dissolution or otherwise) against any Manager.
When Company May Merge or Transfer Assets (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless:
(i) either (A) the Company shall be the surviving corporation or (B) the resulting, surviving or transferee Person (in each of clauses (A) or (B), the “Successor Company”) shall (1) be a corporation or limited liability company organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (provided that, if the Successor Company is a limited liability company, then there shall be a Restricted Subsidiary of such Person which shall be a corporation organized in the jurisdictions permitted by this clause (1) and a co-obligor of the Securities) and (2) expressly assume, by an indenture supplemental thereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving pro forma effect to such transaction, either (x) the Successor Company would be able to Incur an additional $1.00 of Coverage Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (iii) shall not be applicable to (A) a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company shall be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Securities. For all purposes of this Indenture, Subsidiaries of any Successor Company shall, upon any transaction subject to this Section 5.01, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to this Indenture, and all Indebtedness and Liens of the Successor Company and its Subsidiaries that were not Indebtedness or Liens on property or assets, as the case may be, of the Company and its Subsidiaries immediately prior to such transaction shall be deemed to have been Incurred upon such transaction.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, all or substantially all of its assets to any Person unless:
(i) except in the case of a Subsidiary Guarantor (x) that has been disposed of in its entirety to another Person (other than to the Company or an Affiliate of the Company), whether through a merger, consolidation or sale of Capital Stock or assets or (y) that, as a result of the disposition of all or a portion of its Capital Stock, ceases to be a Subsidiary, the resulting, surviving or transferee Person (if not such Subsidiary) shall be a Person organized and existing under the laws of the jurisdiction under which such Subsidiary was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and such Person shall expressly assume, by a Guarantee Agreement, in a form satisfactory to the Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary Guarantee;
(ii) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(iii) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such Guarantee Agreement, if any, complies with this Indenture; provided, however, that this Section 5.01 shall not be applicable to a Restricted Subsidiary consolidating with, merging into or transferring all or part of its properties and assets to the Company or a Subsidiary Guarantor.
Sale of Assets, Consolidation, Merger, Dissolution, Etc Borrower and ------------------------------------------------------- Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly.
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; or
(i) sales of Inventory in the ordinary course of business,
(ii) the sale of any of the Bedford Real Estate; provided, that, -------- ---- as to each such sale, each of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all of the proceeds from any such sale shall be paid directly to Lender on the date of the transfer of ownership or operation of such Real Property or any interest therein (or such earlier date as such amounts may be payable to Borrower), (C) the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of any of such Real Property (or any interest therein) shall be not less than the amount set forth on Schedule 8.7 hereto with respect to such Real Property being sold, (D) fifty (50%) percent of all of such Net Cash Proceeds up to a maximum amount of $2,500,000 shall be held by Lender as cash collateral for all of the Obligations (which cash collateral shall constitute part of the Collateral, may be held by Lender in an account designated by Lender for such purpose in its books and records, may be commingled with Lender's own funds and in respect of which, so long as no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, Borrower shall receive a credit to its loan account on a monthly basis at a rate equal to three (3%) percent per annum less than the Prime Rate, adjusted effective on the first day of the month after any change in such Prime Rate is announced based on the Prime Rate in effect on the last day of the month in which any such change occurs as calculated by Lender and calculated based on a three hundred sixty (360) day year and actual days elapsed), provided, that, in no event shall Borrower be required to pay (or -------- ---- be charged) any interest or other amounts to Lender in respect of such cash collateral, (E) fifty (50%) percent of all of such Net Cash Proceeds (and any amounts in excess of the $2,500,000 of cash collateral to be held by Lender as provided above) shall be applied to Obligations arising pursuant to the Revolving Loans, (F) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (G) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (H) as of the date of such sale and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iii) the sale by Borrower of any Equipment or Real Property (other than the Bedford Real Estate), provided, that, as to any such sale each -------- ---- of the following conditions is satisfied as determined by Lender: (A) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed sale by Borrower of such property, which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale, the Equipment or Real Property to be sold, the purchase price and the manner of payment thereof, the total amount of all cash or other proceeds (including the Net Cash Proceeds) which it is anticipated will be payable to Borrower with respect to such sale, the total estimated costs related to such sale and such other matters as Lender may request, (B) all proceeds from any such sale shall be paid to Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or such earlier date as such amounts may be payable to Borrower), (C) the amount payable to Borrower in respect of the purchase price for such Equipment or Real Property (as the case may be) and the amount of the Net Cash Proceeds received by Lender on the date of the transfer of ownership or operation of such Equipment or Real Property (or any interest therein) shall be not less than the Minimum Sale Price for such Equipment or Real Property, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms'-length transaction with a person that is not an ---- ---- Affiliate, (E) all of the Net Cash Proceeds of any such sale shall be paid directly to Lender and shall be applied as a mandatory prepayment in respect of the installments of principal of the Term Loan in the inverse order of maturity, (F) Borrower shall not incur any liabilities in connection with such sales except as permitted herein, (G) as of the date of such sale and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(iv) the grant by Borrower after the date hereof of a non-exclusive license to any person for the use of any Intellectual Property consisting of trademarks or patents owned by Borrower, provided, that, as to each and all of such licenses, each of the -------- ---- following conditions is satisfied as determined by Lender: (A) at the time of the grant of the license and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing, (B) the rights of the licensee in the trademarks or patents subject to such license shall be subject and subordinate in all respects to the rights therein of Collateral Agent, (C) such licenses shall not include any limitations or restrictions on the use of such trademarks or patents by Borrower or Guarantor or which would limit or restrict the ability of Lender to use such trademarks or patents pursuant to its rights hereunder or under any of the other Financing Agreements or to sell or otherwise realize on such trademarks or patents, except as Lender may otherwise agree in writing and (D) Lender shall have received true, correct and complete copies of the executed license agreement, promptly after the execution thereof;
(v) the issuance and sale by Borrower of Capital Stock in accordance with the terms of the Plan and the issuance and sale by Borrower or Guarantor of Capital Stock of Borrower or Guarantor after the date hereof, provided, that, (A) as to any issuance and sale after the date hereof, Lender -------- ---- shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by Borrower or Guarantor from such sale, (B) Borrower or Guarantor shall not be required to pay any dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, unless otherwise permitted in Section 8.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that limit the right of Borrower to request or receive Loans or Letter of Credit Accommodations or to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrower or Guarantor with Lender or are more restrictive or burdensome to Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) all proceeds from any such issuance and sale by Borrower or Guarantor after the date hereof shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine and (E) as of the date of such issuance and sale and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing;
(vi) the issuance of Capital Stock of Borrower or Guarantor consisting of common stock pursuant to a stock option plan or 401(k) plan of Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, (A) in no event shall Borrower or Guarantor be -------- ---- required to issue, or shall Borrower or Guarantor issue, Capital Stock pursuant to such stock option plan or 401(k) plan which would result in a Change of Control or other Event of Default and (B) Borrower shall give Lender prior written notice of the material terms of such stock option plan and such other information with respect thereto as Lender may reasonably request,
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.
When Company May Merge, Etc Subject to Section 5.02, the Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially all of the consolidated property or assets of the Company and its Subsidiaries, taken as a whole, to another Person (other than one or more Subsidiaries of the Company (it being understood that this Article 5 shall not apply to a sale, transfer, lease, conveyance or other disposition of property or assets between or among the Company and its Subsidiaries)), whether in a single transaction or series of related transactions, unless (i)(x) the Company is the continuing Person or (y) such other Person is organized and existing under the laws of the United States of America, any state of the United States of America or the District of Columbia, such other Person assumes by supplemental indenture all of the obligations of the Company under the Securities and this Indenture and following such transaction or series of related transactions the Reference Property does not include interests in an entity that is a partnership for U.S. federal income tax purposes and (ii) immediately after giving effect to such transaction or series of transactions, no Default or Event of Default shall have occurred and be continuing under this Indenture. For purposes of this Section 5.01, the sale, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of one or more Subsidiaries of the Company to another Person other than the Company or one or more other Subsidiaries of the Company, which properties or assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the consolidated properties or assets of the Company and its Subsidiaries, taken as a whole, shall be deemed to be the sale, transfer, lease, conveyance or other disposition of all or substantially all of the consolidated properties or assets of the Company and its Subsidiaries, taken as a whole, to another Person. The Company shall deliver to the Trustee substantially concurrently with or prior to the consummation of the proposed transaction an Officers’ Certificate and an Opinion of Counsel (which may rely upon such Officers’ Certificate as to the absence of Defaults and Events of Default and other statements of fact) stating that the proposed transaction and, if required, such supplemental indenture (if any) will, upon consummation of the proposed transaction, comply with the applicable provisions of this Indenture.