AS OTHERWISE
DESIGNATED BY ADMINISTRATIVE BORROWER TO LENDER IN WRITING.
(E)
BORROWERS AND GUARANTORS SHALL DELIVER, OR
CAUSE TO BE DELIVERED, TO LENDER, WITHIN NINETY (90) DAYS FROM THE DATE HEREOF,
AN OPENING BALANCE SHEET OF BORROWERS AND GUARANTORS AFTER GIVING EFFECT TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE PURCHASE AGREEMENTS.
9.7
Sale of Assets, Consolidation, Merger,
Dissolution, Etc.
Each Borrower and Guarantor shall not, and shall not permit
any Subsidiary to, directly or indirectly,
(A)
MERGE INTO OR WITH OR CONSOLIDATE WITH ANY
OTHER PERSON OR PERMIT ANY OTHER PERSON TO MERGE INTO OR WITH OR CONSOLIDATE
WITH IT EXCEPT THAT ANY WHOLLY-OWNED SUBSIDIARY OF PARENT (OTHER THAN ANY
BORROWER) MAY MERGE WITH AND INTO OR CONSOLIDATE WITH ANY OTHER WHOLLY-OWNED
SUBSIDIARY OF PARENT (OTHER THAN ANY BORROWER), PROVIDED, THAT, EACH OF THE
FOLLOWING CONDITIONS IS SATISFIED AS DETERMINED BY LENDER IN GOOD FAITH:
(I) LENDER SHALL HAVE RECEIVED NOT LESS THAN TEN (10) BUSINESS DAYS' PRIOR
WRITTEN NOTICE OF THE INTENTION OF SUCH SUBSIDIARIES TO SO MERGE OR CONSOLIDATE,
WHICH NOTICE SHALL SET FORTH IN REASONABLE DETAIL REASONABLY SATISFACTORY TO
LENDER, THE PERSONS THAT ARE MERGING OR CONSOLIDATING, WHICH PERSON WILL BE THE
SURVIVING ENTITY, THE LOCATIONS OF THE ASSETS OF THE PERSONS THAT ARE MERGING OR
CONSOLIDATING, AND THE MATERIAL AGREEMENTS AND DOCUMENTS RELATING TO SUCH MERGER
OR CONSOLIDATION, (II) LENDER SHALL HAVE RECEIVED SUCH OTHER INFORMATION WITH
RESPECT TO SUCH MERGER OR CONSOLIDATION AS LENDER MAY REASONABLY REQUEST,
(III) AS OF THE EFFECTIVE DATE OF THE MERGER OR CONSOLIDATION AND AFTER GIVING
EFFECT THERETO, NO DEFAULT OR EVENT OF DEFAULT SHALL EXIST OR HAVE OCCURRED AND
BE CONTINUING, (IV) LENDER SHALL HAVE RECEIVED, TRUE, CORRECT AND COMPLETE
COPIES OF ALL AGREEMENTS, DOCUMENTS AND INSTRUMENTS RELATING TO SUCH MERGER OR
CONSOLIDATION, INCLUDING, BUT NOT LIMITED TO, THE CERTIFICATE OR CERTIFICATES OF
MERGER TO BE FILED WITH EACH APPROPRIATE SECRETARY OF STATE (WITH A COPY AS
FILED PROMPTLY AFTER SUCH FILING), (V) THE SURVIVING ENTITY SHALL EXPRESSLY
CONFIRM, RATIFY AND ASSUME THE OBLIGATIONS AND THE FINANCING AGREEMENTS TO WHICH
IT
77
IS A PARTY IN WRITING, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO LENDER,
AND BORROWERS AND GUARANTORS SHALL EXECUTE AND DELIVER SUCH OTHER AGREEMENTS,
DOCUMENTS AND INSTRUMENTS AS LENDER MAY REASONABLY REQUEST IN CONNECTION
THEREWITH;
(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 OR GUARANTOR) SO LONG AS SUCH SALES OR OTHER
DISPOSITIONS DO NOT INVOLVE EQUIPMENT HAVING AN AGGREGATE FAIR MARKET VALUE IN
EXCESS OF $1,000,000 FOR ALL SUCH EQUIPMENT DISPOSED OF IN ANY FISCAL YEAR OF
BORROWERS OR AS LENDER MAY OTHERWISE AGREE, AND
(III)
THE ISSUANCE AND SALE BY ANY BORROWER