WAS ACQUIRED BY SUCH
BORROWER OR SUCH GUARANTOR AND OUTSTANDING ON SUCH ACQUISITION DATE, (VII) THE
EXTENSION OR CONTINUATION OF CONTRACTUAL OBLIGATIONS IN EXISTENCE ON THE
EFFECTIVE DATE; PROVIDED, THAT, ANY SUCH ENCUMBRANCES OR RESTRICTIONS CONTAINED
IN SUCH EXTENSION OR CONTINUATION ARE NO LESS FAVORABLE TO ADMINISTRATIVE AGENT
AND LENDERS THAN THOSE ENCUMBRANCES AND RESTRICTIONS UNDER OR PURSUANT TO THE
CONTRACTUAL OBLIGATIONS SO EXTENDED OR CONTINUED, AND (VIII) THE SENIOR NOTE
INDENTURE (AS IN EFFECT ON DECEMBER 6, 2012).
9.18
MINIMUM EXCESS AVAILABILITY.
THE AGGREGATE AMOUNT OF THE EXCESS
AVAILABILITY OF BORROWERS SHALL AT ALL TIMES BE EQUAL TO OR GREATER THAN THE
GREATER OF (A) AN AMOUNT EQUAL TO TEN (10%) PERCENT OF THE TOTAL BORROWING BASE
AND (B) $80,000,000.
156
9.19
LICENSE AGREEMENTS.
(A)
WITH RESPECT TO A LICENSE AGREEMENT (WHICH CONSTITUTES A MATERIAL
CONTRACT) APPLICABLE TO INTELLECTUAL PROPERTY THAT IS OWNED BY A THIRD PARTY AND
LICENSED TO A BORROWER OR GUARANTOR AND THAT IS AFFIXED TO OR OTHERWISE USED IN
CONNECTION WITH THE MANUFACTURE, SALE OR DISTRIBUTION OF ANY INVENTORY (OTHER
THAN AN OFF-THE-SHELF PRODUCT WITH A SHRINK WRAP LICENSE), EACH BORROWER AND
GUARANTOR SHALL (I) GIVE ADMINISTRATIVE AGENT NOT LESS THAN NINETY (90) DAYS
PRIOR WRITTEN NOTICE OF ITS INTENTION TO NOT RENEW OR TO TERMINATE, CANCEL,
SURRENDER OR RELEASE ITS RIGHTS UNDER ANY SUCH LICENSE AGREEMENT, OR TO AMEND
ANY SUCH LICENSE AGREEMENT OR RELATED ARRANGEMENTS TO LIMIT THE SCOPE OF THE
RIGHT OF SUCH BORROWER OR GUARANTOR TO USE THE INTELLECTUAL PROPERTY SUBJECT TO
SUCH LICENSE AGREEMENT IN ANY MATERIAL RESPECT, EITHER WITH RESPECT TO PRODUCT,
TERRITORY, TERM OR OTHERWISE, OR TO INCREASE IN ANY MATERIAL RESPECT THE AMOUNTS
TO BE PAID BY SUCH BORROWER OR GUARANTOR THEREUNDER OR IN CONNECTION THEREWITH
(AND ADMINISTRATIVE AGENT MAY ESTABLISH SUCH RESERVES AS A RESULT OF ANY OF THE
FOREGOING AS ADMINISTRATIVE AGENT MAY REASONABLY DETERMINE), (II) GIVE
ADMINISTRATIVE AGENT PROMPT WRITTEN NOTICE OF ANY SUCH LICENSE AGREEMENT ENTERED
INTO BY SUCH BORROWER OR GUARANTOR AFTER THE EFFECTIVE DATE, OR ANY MATERIAL
AMENDMENT TO ANY SUCH LICENSE AGREEMENT EXISTING ON THE EFFECTIVE DATE, IN EACH
CASE TOGETHER WITH A TRUE, CORRECT AND COMPLETE COPY THEREOF AND SUCH OTHER
INFORMATION WITH RESPECT THERETO AS ADMINISTRATIVE AGENT MAY IN GOOD FAITH
REQUEST, (III) GIVE ADMINISTRATIVE AGENT PROMPT WRITTEN NOTICE OF ANY MATERIAL
BREACH OF ANY OBLIGATION, OR ANY DEFAULT, BY THE THIRD PARTY THAT IS THE
LICENSOR OR BY THE BORROWER OR GUARANTOR THAT IS THE LICENSEE OR ANY OTHER PARTY
UNDER ANY SUCH LICENSE AGREEMENT, AND DELIVER TO ADMINISTRATIVE AGENT (PROMPTLY
UPON THE RECEIPT THEREOF BY SUCH BORROWER OR GUARANTOR IN THE CASE OF A NOTICE
TO SUCH BORROWER OR GUARANTOR AND CONCURRENTLY WITH THE SENDING THEREOF IN THE
CASE OF A NOTICE FROM SUCH BORROWER OR GUARANTOR) A COPY OF EACH NOTICE OF
DEFAULT AND ANY OTHER NOTICE RECEIVED OR DELIVERED BY SUCH BORROWER OR GUARANTOR
IN CONNECTION WITH ANY SUCH A LICENSE AGREEMENT THAT RELATES TO THE SCOPE OF THE
RIGHT, OR THE CONTINUATION