Sale of Assets, Consolidation, Merger, Dissolution, Etc. Except as otherwise expressly permitted herein, each Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except (i) as expressly permitted by SECTION 9.1(A) hereof and (ii) any Borrower may merge with and into another Borrower; (b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for (i) sales of Inventory in the ordinary course of business, (ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $300,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and (iii) the issuance and sale by any Borrower of Capital Stock of such Borrower after the date hereof; provided, that, other than with respect to the issuance or sale of the Capital Stock of Parent on a public exchange (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers with Agent and Lenders or are more restrictive or burdensome to any Borrower than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (iv) the issuance of Capital Stock of any Borrower consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower be required to issue, or shall such Borrower issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, (v) the transfer of Collateral or non-exclusive licenses of technology and other Intellectual Property between or among Borrowers or from any Subsidiary to a Borrower; (c) wind up, liquidate or dissolve; or (d) agree to do any of the foregoing.
Appears in 1 contract
Sources: Loan and Security Agreement (Sed International Holdings Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Except as otherwise expressly permitted herein, each Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except (i) as expressly permitted by SECTION 9.1(A) hereof and (ii) any Borrower may merge with and into another Borrowerit;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for
(i) sales of Inventory in the ordinary course of business,;
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $300,000 500,000 for all such Equipment disposed of in any fiscal year of Borrowers Borrower or as Agent may otherwise agree, and;
(iii) the issuance and sale by any Borrower of Capital Stock of such Borrower after the date hereof; provided, that, other than with respect to the issuance or sale of the Capital Stock of Parent on a public exchange (A) Agent shall have received not less than ten (10) Business Days' β prior written notice of such issuance and sale by such Borrower, which notice shall specify the parties parties, if then identifiable, to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers with Agent and Lenders or are more restrictive or burdensome to any Borrower than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred,
(iv) the issuance of Capital Stock of any Borrower consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower be required to issue, or shall such Borrower issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default,
(v) the transfer of Collateral or non-exclusive licenses of technology and other Intellectual Property between or among Borrowers or from any Subsidiary to a Borrower;
(c) wind up, liquidate or dissolve; or
(d) agree to do any of the foregoing.in
Appears in 1 contract
Sources: Loan and Security Agreement (Reptron Electronics Inc)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Except as otherwise expressly permitted herein, each Borrower shall not, and shall not permit any Subsidiary of Borrower to, directly or indirectly,
(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except it, EXCEPT THAT a majority-owned Subsidiary of Borrower may merge into or with or consolidate with Borrower or a wholly-owned domestic Subsidiary of Borrower; PROVIDED, THAT, each of the following conditions is satisfied as determined by Agent: (i) Agent shall have received not less than ten (10) Business Days' prior written notice of the intention of Borrower to so merge or consolidate, and such information with respect thereto as expressly permitted by SECTION 9.1(A) hereof and Agent may reasonably request, (ii) as of the effective date of such merger or consolidation and after giving effect thereto, no Event of Default shall exist or have occurred, (iii) Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) Borrower or such wholly-owned domestic Subsidiary shall be the surviving entity and shall immediately upon the effectiveness of the merger expressly confirm in writing pursuant to an agreement, in form and substance satisfactory to Agent, its continuing liability in respect of the Obligations and the Financing Agreements to which it is a party and execute and deliver such other agreements, documents and instruments as Agent may reasonably request in connection therewith, (v) any Guarantor shall ratify and confirm that its guarantees of the Obligations shall apply to the Obligations as assumed by such surviving entity and ratify and confirm any other agreements by such Obligors in favor of Agent, and (vi) the surviving entity shall not become obligated with respect to any Indebtedness, nor any of its property become subject to any lien, unless Borrower may merge with and into another Borrowercould incur such Indebtedness or create such lien hereunder;
(b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except forEXCEPT FOR
(i) sales of Inventory in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower) or other assets (other than any Collateral) no longer used in the conduct of its business so long as such sales or other dispositions do not involve Equipment or such other assets (other than any Collateral) having an aggregate fair market value in excess of $300,000 17,500,000 for all such Equipment or such other assets (other than Collateral) disposed of in any fiscal year of Borrowers Borrower or as Agent may otherwise agree, andor
(iii) the issuance and sale by any Borrower of Capital Stock of such Borrower after the date hereof; provided, that, other than with respect to [intentionally omitted]
(iv) the issuance or sale of Capital Stock by Borrower or any Subsidiary of Borrower after the date hereof or as sales or issuances of Capital Stock issued by Subsidiaries formed or acquired to the extent permitted hereby; PROVIDED, THAT, (A) in the case of any such sale or issuance of Capital Stock of Parent on a public exchange (A) Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock of Borrower, Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrower, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereofthereof prior to the end of the term of this Agreement, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers with Agent and Lenders or which are more restrictive or burdensome to any Borrower than the terms of any Capital Stock of Borrower in effect on the date hereof, and (D) in the case of any such sale or issuance of Capital Stock of a Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock of Borrower, after giving effect to such issuance or sale, no Event of Default shall exist or have occurred and be continuing;
(A) the issuance of Capital Stock of Borrower consisting of common stock (and options therefor) in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof, (DB) except as Agent may otherwise agree in writing[intentionally omitted], all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred,
(ivC) the issuance of Capital Stock of any Borrower consisting of common stock pursuant to the exercise of options therefor that have been issued pursuant to the Plan of Reorganization as in effect on the date hereof, and (D) the issuance of Capital Stock to qualify directors to the extent required by applicable law in the ordinary course;
(vi) the issuance of Capital Stock of Borrower consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower for the benefit of its employees, directors and consultants,
(vii) [intentionally omitted]
(viii) the licensing by Borrower or a Subsidiary of Borrower of Intellectual Property owned by it to another Person; PROVIDED, THAT, as to any such license: (A) the transaction with respect to such license is an arm's length transaction in the ordinary course of business of Borrower or such Subsidiary, (B) Borrower or such Subsidiary receives at least fair market value with respect to the value of such license as determined by Borrower in good faith, and (C) any rights of such Borrower or such Subsidiary shall be subject to the rights of Agent in such Intellectual Property, including, without limitation, the rights of Agent to use such Intellectual Property in connection with the exercise of Agent's rights and remedies with respect to the Collateral;
(ix) investments permitted by Section 9.10 hereof;
(x) sale and leaseback transactions with respect to Equipment, Real Property or other assets not constituting Collateral so long as the following conditions shall have been satisfied, (A) Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or leaseback and such other information with respect thereto as Agent may reasonably request, (B) after giving effect to such transaction no Default or Event of Default exists or has occurred and is continuing, (C) such transaction is an arm's length transaction and Borrower or such Subsidiary, as the case may be, receives at least fair market value, as determined in good faith by Borrower, in connection with such transaction and (D) if requested by Agent, Agent shall have received, in form and substance satisfactory to Agent, a Collateral Access Agreement with respect to such Equipment, Real Property or other assets;
(xi) [intentionally omitted];
(xii) sales or other dispositions by Borrower of assets or properties consisting of the Note Collateral; provided, that, as to each and all such sales or dispositions, (A) except with respect to the sale of the Dayville, Connecticut Closed Plant, Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or disposition, and such other information with respect thereto as Agent may reasonably request, and (B) such sale or disposition is consummated in accordance with the terms and conditions of the Noteholder Agreements;
(c) form or acquire any Subsidiaries, EXCEPT, THAT, Borrower may form or acquire Subsidiaries (to the extent permitted by Sections 9.7(a) and 9.10 hereof) after the date hereof; PROVIDED, THAT, (i) as of the date of such formation or acquisition, and after giving effect thereto or otherwise, no event Default or Event of Default shall exist or have occurred and be continuing, (ii) such Subsidiary shall be incorporated in a State of the United States, (iii) upon such formation or acquisition, Borrower shall notify Agent of such formation or acquisition and Borrower shall cause any such Subsidiary to execute and deliver to Agent, in form and substance satisfactory to Agent: (A) an absolute and unconditional guarantee of payment of all of the Obligations, (B) a security agreement granting to Agent, for itself and the benefit of Lenders a first priority security interest in and lien upon all of the accounts receivable and inventory (and related property comparable to that included as Collateral) of such Subsidiary, (C) related UCC financing statements, and (D) such other agreements, documents and instruments Agent may reasonably require in connection therewith as to the validity and enforceability thereof, (iv) upon such formation or acquisition, to the extent not prohibited by the Note Indenture, Borrower shall, and shall cause each Subsidiary of Borrower that owns any Capital Stock in such Subsidiary being formed or acquired to, (A) execute and deliver to Agent, a pledge and security agreement, in form and substance satisfactory to Agent, granting to Agent a pledge of and lien on all of the issued and outstanding shares of Capital Stock of such Subsidiary so formed or acquired that are owned by Borrower or the Subsidiary forming or acquiring such Subsidiary, (B) deliver the original stock certificates evidencing such shares of Capital Stock (or such other evidence as may be required to issueissued in the case of a limited liability company), together with stock powers with respect thereto duly executed in blank (or the equivalent thereof in the case of a limited liability company in which such interests are certificated, or otherwise take such actions as Agent shall such Borrower issuereasonably require with respect to Agent's security interests therein), Capital Stock pursuant to such stock plans or 401(kand (C) plans which would result in a Change of Control or other Event of Default,
deliver related UCC financing statements, and (v) the transfer amount of Collateral the investment by Borrower in the Capital Stock of such Subsidiary and any other amounts paid by Borrower to or non-exclusive licenses in connection with the formation or acquisition of technology and other Intellectual Property between or among Borrowers or from any such Subsidiary to a Borrowershall not exceed the amount permitted under Section 9.10 hereof;
(cd) wind up, liquidate or dissolve, EXCEPT, THAT any Subsidiary of Borrower (other than a Guarantor) may wind up, liquidate and dissolve so long as, each of the following conditions is satisfied, (i) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (ii) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to its shareholders or its creditors, (iii) upon the request of Agent, Borrower shall deliver to Agent all documents and agreements that Borrower or any Subsidiary has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (iv) Borrower or such Subsidiary, as the case may be, shall not acquire any material liabilities not otherwise permitted hereby as a result of such winding up, liquidation or dissolution, (v) Agent shall have received not less than ten (10) Business Days prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, and (vi) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred; or
(de) agree to do any of the foregoingforegoing provided that Borrower and its Subsidiaries may enter into agreements to effectuate any transaction otherwise prohibited by this Section 9.7 so long as (i) concurrently with the execution and delivery of any such agreement, Borrower shall provide Agent notice thereof and (ii) the consummation of any such agreement is conditioned upon obtaining either (A) the consent of Agent or the Required Lenders or (B) the termination of this Agreement and the other Financing Agreements and the repayment in full of all outstanding Obligations in accordance with the terms and conditions contained herein.
Appears in 1 contract
Sources: Loan and Security Agreement (Anchor Glass Container Corp /New)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Except as otherwise expressly permitted herein, each Each Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly,
, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it except (i) as expressly permitted by SECTION 9.1(A) hereof and (ii) any Borrower may merge with and into another Borrower;
it, or (b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its properties or assets to any other Person, Person (except for
for (i) sales or other dispositions by a Borrower or its Subsidiaries of Inventory assets in the ordinary course of business,
(ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $300,000 for all such Equipment disposed of in any fiscal year of Borrowers or as Agent may otherwise agree, and
(iii) the issuance and sale by any Borrower of Capital Stock of such Borrower after the date hereofor Subsidiary which consist of Equipment or Real Property; provided, that, as to each and all such sales, (A) at least eighty (80%) percent of the consideration received from such sale is in the form of cash or Cash Equivalents, (B) the net cash proceeds from such sale or other than with respect disposition are first used to repay any Indebtedness secured by the property so sold or otherwise disposed of and any net cash proceeds thereafter are applied to make an investment, capital expenditure or other expenditure which is related to the issuance business of such Borrower as it is conducted on the date hereof and is otherwise permitted hereunder, within two hundred seventy (270) days of such sale or other disposition, provided, that, such Borrower shall not be required to make such investment, capital expenditure or other expenditure with the proceeds of such sale or other disposition to the extent of such proceeds do not exceed $5,000,000 in the Capital Stock of Parent on a public exchange aggregate, (AC) Agent shall have received not less than ten (10) Business Days' Days prior written notice of such issuance and sale by such Borrowersale, which notice shall specify set forth in reasonable detail satisfactory to Agent, the parties to whom such shares are sale or other disposition, the assets to be soldsold or otherwise disposed of, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock purchase price and the net cash proceeds which it is anticipated will be received by manner of payment thereof and such Borrower from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in information with respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers with Agent and Lenders or are more restrictive or burdensome to any Borrower than the terms of any Capital Stock in effect on the date hereof, (D) except thereto as Agent may otherwise agree in writingreasonably request, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's option, to be held as cash collateral for the Obligations and (ED) as of the date of such issuance and sale or other disposition and after giving effect thereto, no Default Event of Default, or act, condition or event which with notice or passage of time would constitute an Event of Default shall exist or have occurred,
, (ii) sales of Inventory in the ordinary course of business, (iii) the disposition of worn-out or obsolete Equipment or Equipment or other assets which are not Collateral and which are no longer used or useful in the business of a Borrower or its Subsidiaries, (iv) the transfer by Doe Run to Buick Recycling of the assets listed on Schedule 7.6(c) hereto to the extent permitted by Section 7.6(c) hereof; (v) the issuance by Doe Run to the holders of the New Warrants of Capital Stock of any Borrower consisting Doe Run in accordance with the terms of common stock pursuant the New Warrants and the New Warrant Documents (as the same are in effect on the date hereof), and (vi) the issuance by Doe Run to an employee stock option or grant or similar equity plan or 401(k) plans Renco Group of such Borrower for the benefit of its employees, directors and consultants, provided, that, Renco Preferred Stock in no event shall such Borrower be required to issueaccordance with the Renco Preferred Stock Purchase Agreement (as in effect on the date hereto), or shall such Borrower issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default,
(v) the transfer of Collateral or non-exclusive licenses of technology and other Intellectual Property between or among Borrowers or from any Subsidiary to a Borrower;
(c) wind up, liquidate or dissolve; or
, or (d) agree to do any of the foregoing.
Appears in 1 contract
Sources: Loan and Security Agreement (Doe Run Resources Corp)
Sale of Assets, Consolidation, Merger, Dissolution, Etc. Except as otherwise expressly permitted herein, each The Borrower shall not, and shall not permit any Subsidiary of the Borrower to, directly or indirectly,
(ai) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it it, except (i) as expressly permitted by SECTION 9.1(A) hereof and (ii) any that a Subsidiary of the Borrower may merge into or with or consolidate with the Borrower or a wholly-owned domestic Subsidiary of the Borrower, provided, that, each of the following conditions is satisfied as determined by the Agent: (A) the Agent shall have received not less than ten (10) Business Days' prior written notice of the intention of the Borrower to so merge or consolidate, and into another Borrowersuch information with respect thereto as the Agent may reasonably request, (B) as of the effective date of such merger or consolidation and after giving effect thereto, no Event of Default shall exist or have occurred, (C) the Agent shall have received true, correct and complete copies of all agreements, instruments and other documents relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (D) the Borrower or such wholly-owned domestic Subsidiary shall be the surviving entity and shall immediately upon the effectiveness of the merger expressly confirm in writing pursuant to an agreement, in form and substance satisfactory to the Agent, its continuing liability in respect of the Term Loan Obligations and the Loan Documents to which it is a party and execute and deliver such other agreements, instruments and other documents and instruments as the Agent may reasonably request in connection therewith, (E) any Guarantor shall ratify and confirm that its guarantee of the Term Loan Obligations shall apply to the Term Loan Obligations as assumed by such surviving entity and ratify and confirm any other agreements by such Obligors in favor of the Agent, and (F) the surviving entity shall not become obligated with respect to any Indebtedness, nor any of its property become subject to any lien, unless the Borrower could incur such Indebtedness or create such lien hereunder;
(bii) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets assts to any other Person, except for:
(iA) sales of Inventory in the ordinary course of business,
(iiB) the sale or other disposition Disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any the Borrower) or other assets (other than any Collateral) no longer used in the conduct of its business so long as such sales or other dispositions Dispositions do not involve Equipment or such other assets (other than any Collateral) having an aggregate fair market value in excess of $300,000 3,000,000 for all such Equipment or other assets (other than Collateral) disposed of in any fiscal year of Borrowers the Borrower and the Net Cash Proceeds of such sale or as Agent may otherwise agree, andother Disposition are applied in accordance with Section 2.05,
(iiiC) sales or other Dispositions by the issuance and sale by any Borrower of Capital Stock assets or properties consisting of such Borrower after the date hereofMortgage Note Collateral; provided, that, as to each and all such sales or Dispositions, (1) the Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or Disposition, and such other than information with respect to thereto as the Agent may reasonably request, (2) such sale or Disposition is consummated in accordance with the terms and conditions of the Mortgage Note Agreements and the Mortgage Note Intercreditor Agreement, and (3) the Net Cash Proceeds of such sale or other Disposition are applied in accordance with Section 2.05;
(D) the issuance or sale of Capital Stock by the Borrower or any Subsidiary of the Borrower after the date hereof or as sales or issuances of Capital Stock issued by Subsidiaries formed or acquired to the extent permitted hereby; provided, that (1) in the case of any such sale or issuance of Capital Stock of Parent on a public exchange (A) Subsidiary or, if an Event of Default has occurred and is continuing, any issuance of Capital Stock of the Borrower, the Agent shall have received not less than ten (10) Business Days' prior written notice of such issuance and sale by such Borrowersale, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such the Borrower from such sale, (B2) such the Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereofthereof prior to March 31, 2005, except as otherwise permitted in by Section 9.11 hereof6.02(f), (C3) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers with Agent and Lenders or are more restrictive or burdensome to any the Borrower than the terms of any Capital Stock of the Borrower in effect on the date hereof, (D4) except as Agent may otherwise agree in writingthe case of any such sale or issuance of Capital Stock of a Subsidiary or, all if an Event of Default has occurred and is continuing, any issuance of Capital Stock of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in such order and manner as Agent may determine or at Agent's optionBorrower, to be held as cash collateral for the Obligations and (E) as of the date of such issuance and sale and after giving effect theretoto such issuance or sale, no Default or Event of Default shall exist or have occurred,occurred and be continuing and (5) the Net Cash Proceeds of such sale or other Disposition are applied in accordance with Section 2.05;
(iv1) the issuance of Capital Stock of any the Borrower consisting of common stock (and options therefor) in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof.
(2) the issuance of the PBGC Warrant and the Series C Participating Preferred Stock in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof, (3) the issuance of Capital Stock of the Borrower consisting of common stock pursuant to the exercise of options therefor that have been issued pursuant to the Plan of Reorganization as in effect on the date hereof or pursuant to the exercise of its PBGC Warrant as in effect on the date hereof and (4) the issuance of Capital Stock to qualify directors to the extent required by applicable law in the ordinary course:
(F) the issuance of Capital Stock of the Borrower consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such the Borrower for the benefit of its employees, directors and consultants, ;
(G) the deposit of $450,000 on the date hereof in an escrow fund pursuant to which the Borrower becomes a contributing member of the GMP Multiemplover Plan in accordance with the terms and conditions of the Plan of Reorganization as in effect on the date hereof and the Confirmation Order as in effect on the date hereof,
(H) the licensing by the Borrower or a Subsidiary of the Borrower of Intellectual Property owned by it to another Person: provided, that, in no event shall as to any such Borrower be required to issue, or shall such Borrower issue, Capital Stock pursuant license: (1) the transaction with respect to such stock plans license is an arm's length transaction in the ordinary course of business of the Borrower or 401(k) plans which would result in a Change of Control or other Event of Default,
such Subsidiary, (v2) the transfer Borrower or such Subsidiary receives at least fair market value with respect to the value of Collateral such license as determined by the Borrower in good faith, and (3) any rights of the Borrower or non-exclusive licenses such Subsidiary shall be subject to the rights of technology and other the Agent in such Intellectual Property, including, without limitation, the rights of the Agent to use such Intellectual Property between or among Borrowers or from any Subsidiary in connection with the exercise of the Agent's rights and remedies with respect to a Borrowerthe Collateral;
(cI) Investments permitted by Section 6.02(e);
(J) sale and leaseback transactions with respect to Equipment, real property or other assets not constituting Collateral so long as the following conditions shall have been satisfied, (1) the Agent shall have received not less than ten (10) Business Days' prior written notice of such sale or leaseback and such other information with respect thereto as the Agent may reasonably request, (2) after giving effect to such transaction no Default or Event of Default has occurred and is continuing, (3) such transaction is an arm's length transaction and the Borrower or such Subsidiary, as the case may be, receives at least fair market value, as determined in good faith by the Borrower, in connection with such transaction and (4) the Agent shall have received, in form and substance satisfactory to the Agent, a Collateral Access Agreement with respect to such Equipment, real property or other assets and (5) the Net Cash Proceeds of such transaction are applied in accordance with Section 2.05;
(K) discounts, settlement or compromise of Indebtedness evidenced by the Pabst Notes to the extent permitted by Section 6.02(s);
(iii) form or acquire any Subsidiaries, except, that, the Borrower may form or acquire Subsidiaries (to the extent permitted by subsection (i) above and Section 6.02(e)) after the date hereof; provided, that (A) as of the date of such formation or acquisition, and after giving effect thereto or otherwise, no Default or Event of Default shall have occurred
(a) with respect to such Subsidiary and (D) the amount of the investment by the Borrower in the Capital Stock of such Subsidiary and any other amounts paid by the Borrower, to or in connection with the formation or acquisition of such Subsidiary shall not exceed the amount permitted under Section 6.02(e);
(iv) wind up, liquidate or dissolve, except that any Subsidiary of the Borrower (other than a Guarantor) may wind up. liquidate and dissolve so long as, each of the following conditions is satisfied, (A) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (B) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Subsidiary shall be duly and validly transferred and assigned to its shareholders or its creditors, (C) upon the request of the Agent, the Borrower shall deliver to the Agent all agreements, instruments and other documents that the Borrower or any Subsidiary of the Borrower has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (D) the Borrower or such Subsidiary, as the case may be, shall not acquire any material liabilities not otherwise permitted hereby as a result of such winding up, liquidation or dissolution, (E) the Agent shall have received not less than ten (10) Business Days prior written notice of the intention of such Subsidiary to wind up, liquidate or dissolve, and (F) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Default or Event of Default shall exist or have occurred; or
(dv) agree to do any of the foregoingforegoing provided that any of the Borrower and its Subsidiaries may enter into agreements to effectuate any transaction otherwise prohibited by this Section 6.02(b) so long as (i) concurrently with the execution and delivery of any such agreement, the Borrower shall provide the Agent notice thereof and (ii) the consummation of any such agreement is conditioned upon obtaining the consent of the Required Lenders or the repayment in full of the Term Loan Obligations in accordance with its terms hereof.
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Sources: Term Loan Agreement (Anchor Glass Container Corp /New)