TO AGENT OR ANY LENDER MAY BE DESTROYED OR OTHERWISE DISPOSED OF BY
AGENT OR SUCH LENDER ONE (1) YEAR AFTER THE SAME ARE DELIVERED TO AGENT OR SUCH
LENDER, EXCEPT AS OTHERWISE DESIGNATED BY PARTY TO AGENT OR SUCH LENDER IN
WRITING.
9.7
SALE OF ASSETS, CONSOLIDATION, MERGER, DISSOLUTION, ETC.
NO
BORROWER OR GUARANTOR SHALL, NOR SHALL IT PERMIT ANY OF ITS SUBSIDIARIES 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; PROVIDED,
HOWEVER, UPON PRIOR WRITTEN NOTICE TO AGENT:
(I)
A BORROWER MAY MERGE INTO OR WITH OR CONSOLIDATE WITH ANOTHER
BORROWER SO LONG AS BOTH BEFORE AND AFTER GIVING EFFECT THERETO NO DEFAULT,
EVENT OF DEFAULT OR MATERIAL ADVERSE EFFECT EXISTS OR WOULD OCCUR;
(II)
A GUARANTOR MAY MERGE INTO OR WITH OR CONSOLIDATE WITH ANOTHER
GUARANTOR; AND
(III)
A GUARANTOR MAY MERGE INTO OR WITH OR CONSOLIDATE WITH A BORROWER
SO LONG AS (A) SUCH BORROWER IS THE SURVIVING ENTITY WITH RESPECT THERETO AND
CONTINUES TO BE AN ORGANIZATION OF THE TYPE, DOMICILED IN THE STATE AND BEARING
THE SAME CORPORATE NAME AS EXISTED PRIOR TO SUCH MERGER OR CONSOLIDATION, (B) NO
DEFAULT OR EVENT OF DEFAULT THEN EXISTS OR WOULD OCCUR, (C) NO LIENS, OTHER THAN
THOSE PERMITTED UNDER THE TERMS OF THIS AGREEMENT WITH REGARD TO A BORROWER, ON
THE ASSETS OF SUCH GUARANTOR THEN EXIST, AND (D) SUCH BORROWER WOULD NOT, AS A
RESULT OF SUCH TRANSACTION, BE LIABLE FOR ANY INDEBTEDNESS OR OTHER OBLIGATIONS
OF SUCH GUARANTOR, OTHER THAN INDEBTEDNESS OR OTHER OBLIGATIONS WHICH ARE
PERMITTED UNDER THE TERMS OF THIS AGREEMENT WITH REGARD TO A BORROWER;
89
(B)
SELL, ISSUE, ASSIGN, LEASE, LICENSE, TRANSFER, ABANDON OR
OTHERWISE DISPOSE OF ANY CAPITAL STOCK 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)
SUBLEASES OF REAL PROPERTY OR LICENSES OF INTELLECTUAL PROPERTY
IN THE ORDINARY COURSE OF BUSINESS, AS DISCLOSED TO AGENT PURSUANT TO QUARTERLY
REPORTS OF SUCH ACTIVITY,
(III)
EXCLUSIVE OF SALES OR DISPOSITIONS CONTEMPLATED BY CLAUSE (VI)
HEREOF, THE SALE OR OTHER DISPOSITION OF EQUIPMENT (INCLUDING WORN-OUT OR
OBSOLETE EQUIPMENT OR EQUIPMENT NO LONGER USED OR USEFUL IN THE BUSINESS OF
BORROWERS) SO LONG AS THE VALUE OF SUCH EQUIPMENT SOLD IN ANY FISCAL YEAR IS
EQUAL TO OR LESS THAN THE VALUE OF ALL EQUIPMENT ACQUIRED IN SUCH YEAR, AND
(IV)
THE ISSUANCE AND SALE BY ANY BORROWER OR GUARANTOR OF CAPITAL
STOCK OF SUCH BORROWER OR GUARANTOR AFTER THE DATE HEREOF; PROVIDED, THAT, (A)
AGENT SHALL HAVE RECEIVED NOT LESS THAN TEN (10) BUSINESS DAYS' PRIOR WRITTEN
NOTICE OF SUCH ISSUANCE AND SALE BY SUCH 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