Consolidation, Merger, or Sale of Assets, etc. Each Obligor will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger (including any “fusion” implemented in accordance with articles L.236-1 to L.236.24 of the French Code de commerce or any “transmission universelle du patrimoine”) or consolidation or de-merger, or convey, sell, lease or otherwise dispose of all or any part of its property or assets (other than sales of inventory in the ordinary course of business), or enter into any sale-leaseback transactions or acquire any Acquired Entity or Business (or agree to do any of the foregoing at any future time), except that: (i) Group Members may sell assets to the extent required by Applicable Law, provided such assets are not material to the business of the Group; (ii) Group Members may (x) sell inventory in the ordinary course of business or (y) liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business; (iii) Group Members may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business, in each case for cash at Fair Market Value; (iv) Group Members may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (iv)), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and such Group Member receives at least Fair Market Value, (x) the consideration received by such Group Member consists of at least 75% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(e) and (z) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iv) shall not exceed £15,000,000 in any Fiscal Year (for this purpose, using the Fair Market Value of property other than cash); provided, that notwithstanding the foregoing limitations, Group Members may consummate the substantially current purchase and sale or exchange of assets used or useful in the business conducted by the Group Members on the Restatement Effective Date so long as (x) the assets acquired by the Group Members are located in the same jurisdiction as the assets sold by the Group Members, (y) each such sale is in an arm’s length transaction and the respective Group Member receives at least Fair Market Value and (z) the Security Agent shall have a perfected Lien on the assets acquired pursuant to such purchase or exchange at least to the same extent for the assets sold pursuant to such transaction (immediately prior to giving effect thereto) subject to no other Lien other than Permitted Liens; (v) each Group Member may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 10.04(iv)); (vi) each Group Member may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction; (vii) each Group Member may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Group, in each case so long as no such grant otherwise affects the Security Agent’s security interest in the asset or property subject thereto; (viii) transfers of assets (i) among the Obligors, (ii) by any Group Member that is not an Obligor to any Obligor and (iii) by any Group Member that is not an Obligor to any other Group Member that is not an Obligor in each case shall be permitted, so long as any assets so transferred shall be subject to any security interests granted to the Security Agent for the benefit of the Secured Creditors at least to the same extent as would have been required had the transferee originally owned such assets; (i) any Obligor may be merged, consolidated or liquidated with or into any other Obligor organized in the same jurisdiction, (ii) any Group Member that is not an Obligor may be merged, consolidated or liquidated with or into any Obligor organized in the same jurisdiction and (iii) any Group Member that is not an Obligor may be merged, consolidated or liquidated with or into any other Group Member that is not an Obligor organized in the same jurisdiction (so long as a Wholly-Owned Subsidiary of a Group Member is the surviving Person of any such merger, consolidation or liquidation); provided that any such merger, consolidation or liquidation shall only be permitted pursuant to this clause (ix), so long as (A) any security interests granted to the Security Agent for the benefit of the Secured Creditors in the assets (and Equity Interests) of any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation or liquidation), (B) if any Person subject to any such merger, consolidation or liquidation is a Borrower, the surviving Person also shall be a Borrower and (C) if the Person to be merged, consolidated or liquidated into another Person as contemplated above is party to the Guaranty, the nature and scope of the obligations of such Person under such Guaranty are substantially identical to the nature and scope of the obligations of such other Person under such Guaranty; (x) Permitted Acquisitions may be consummated in accordance with the requirements of Section 9.16; (xi) Group Members may sell non-core assets acquired in connection with Permitted Acquisitions which are not used in the business of the Group; (xii) Group Members may undertake sale-leaseback transactions of fixed or capital assets, to the extent not otherwise prohibited hereunder; (xiii) Group Members may undertake bulk sales or other dispositions of the Obligors’ Inventory not in the ordinary course of business in connection with store closings, at arm’s length; (xiv) Group Members may incur Permitted Liens; (xv) Group Members may undertake exchanges or swaps of equipment, store leases or other Real Property having substantially equivalent value; provided that, upon the completion of any such exchange or swap, (i) the Security Agent, for its own benefit and the benefit of other Secured Creditors, has a first priority lien (subject only to Permitted Liens having priority by operation of Applicable Law) in such equipment, store leases or other Real Property received by the Obligors at least to the same extent as the assets exchanged or swapped pursuant to such transaction (immediately prior to giving effect thereto) subject to no other Lien other than Permitted Liens, and (ii) all Net Sale Proceeds, if any, received in connection with any such exchange or swap of equipment are applied to the Loans if then required in accordance with Section 5.02; and (xvi) Group Members may sell, transfer, wind up or otherwise dispose of assets, including the Equity Interests of any Subsidiary or any business unit thereof, so long as (a) the amount of any such sale, transfer, winding up or disposal, together with the aggregate amount of any previous sales, transfers, windings up and disposals made by Group Members pursuant to this clause (xvi) shall not exceed in the aggregate an amount equal to 7.5% of the Consolidated Total Assets of the Group, (b) no Default or Event of Default exists or would result therefrom, (c) the Obligor being disposed of has no Loans or Letters of Credit Outstanding, (d) Excess Availability, calculated on a pro forma basis giving effect to such disposition (and as set forth in a Borrowing Base Certificate), shall not be less than the greater of (i) £12,000,000 and (ii) 12.5% of the lesser of (x) the Total Commitment as then in effect and (y) the Borrowing Base (giving pro forma effect to such disposition) at such time, and (e) such sale is in an arm’s-length transaction. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (other than to an Obligor), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Security Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Notwithstanding anything to the contrary contained above in this Section 10.02 or elsewhere in this Agreement, at any time when a Dominion Period is in effect, no Borrowing Base Collateral may be sold, transferred or otherwise disposed of by any Borrower or any Obligor that is not a Borrower (other than sales of inventory in the ordinary course of business) unless the Obligors’ Agent delivers a pro forma Borrowing Base Certificate to the Administrative Agent prior to the sale, transfer or other disposal of such Collateral demonstrating compliance with the Borrowing Base.
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Samples: Amendment and Restatement Agreement (Toys R Us Inc)
Consolidation, Merger, or Sale of Assets, etc. Each Obligor will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any partnership, joint venture, or transaction of merger (including any “fusion” implemented in accordance with articles L.236-1 to L.236.24 of the French Code de commerce or any “transmission universelle du patrimoine”) or consolidation or de-merger, or convey, sell, lease or otherwise dispose of all or any part of its property or assets (other than sales of inventory in the ordinary course of business), or enter into any sale-leaseback transactions or acquire any Acquired Entity or Business (or agree to do any of the foregoing at any future time), except that:
(i) Group Members may sell assets to the extent required by Applicable Law, provided such assets are not material to the business of the Group;
(ii) Group Members may (x) sell inventory in the ordinary course of business or (y) liquidate or otherwise dispose of obsolete or worn-out property in the ordinary course of business;
(iii) Group Members may liquidate or otherwise dispose of Cash Equivalents in the ordinary course of business, in each case for cash at Fair Market Value;
(iv) Group Members may sell assets (other than the capital stock or other Equity Interests of any Wholly-Owned Subsidiary, unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (iv)), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and such Group Member receives at least Fair Market Value, (x) the consideration received by such Group Member consists of at least 75% cash and is paid at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(e) and (z) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (iv) shall not exceed £15,000,000 in any Fiscal Year (for this purpose, using the Fair Market Value of property other than cash); provided, that notwithstanding the foregoing limitations, Group Members may consummate the substantially current purchase and sale or exchange of assets used or useful in the business conducted by the Group Members on the Restatement Effective Date so long as (x) the assets acquired by the Group Members are located in the same jurisdiction as the assets sold by the Group Members, (y) each such sale is in an arm’s length transaction and the respective Group Member receives at least Fair Market Value and (z) the Security Agent shall have a perfected Lien on the assets acquired pursuant to such purchase or exchange at least to the same extent for the assets sold pursuant to such transaction (immediately prior to giving effect thereto) subject to no other Lien other than Permitted Liens;
(v) each Group Member may lease (as lessee) or license (as licensee) real or personal property (so long as any such lease or license does not create a Capitalized Lease Obligation except to the extent permitted by Section 10.04(iv));
(vi) each Group Member may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(vii) each Group Member may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Group, in each case so long as no such grant otherwise affects the Security Agent’s security interest in the asset or property subject thereto;
(viii) transfers of assets (i) among the Obligors, (ii) by any Group Member that is not an Obligor to any Obligor and (iii) by any Group Member that is not an Obligor to any other Group Member that is not an Obligor in each case shall be permitted, so long as any assets so transferred shall be subject to any security interests granted to the Security Agent for the benefit of the Secured Creditors at least to the same extent as would have been required had the transferee originally owned such assets;
(i) any Obligor may be merged, consolidated or liquidated with or into any other Obligor organized in the same jurisdiction, (ii) any Group Member that is not an Obligor may be merged, consolidated or liquidated with or into any Obligor organized in the same jurisdiction and (iii) any Group Member that is not an Obligor may be merged, consolidated or liquidated with or into any other Group Member that is not an Obligor organized in the same jurisdiction (so long as a Wholly-Owned Subsidiary of a Group Member is the surviving Person of any such merger, consolidation or liquidation); provided that any such merger, consolidation or liquidation shall only be permitted pursuant to this clause (ix), so long as (A) any security interests granted to the Security Agent for the benefit of the Secured Creditors in the assets (and Equity Interests) of any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation or liquidation), (B) if any Person subject to any such merger, consolidation or liquidation is a Borrower, the surviving Person also shall be a Borrower and (C) if the Person to be merged, consolidated or liquidated into another Person as contemplated above is party to the Guaranty, the nature and scope of the obligations of such Person under such Guaranty are substantially identical to the nature and scope of the obligations of such other Person under such Guaranty;
(x) Permitted Acquisitions may be consummated in accordance with the requirements of Section 9.16;
(xi) Group Members may sell non-core assets acquired in connection with Permitted Acquisitions which are not used in the business of the Group;
(xii) Group Members may undertake sale-leaseback transactions of fixed or capital assets, to the extent not otherwise prohibited hereunder;
(xiii) Group Members may undertake bulk sales or other dispositions of the Obligors’ Inventory not in the ordinary course of business in connection with store closings, at arm’s length;
(xiv) Group Members may incur Permitted Liens;; and
(xv) Group Members may undertake exchanges or swaps of equipment, store leases or other Real Property having substantially equivalent value; provided that, upon the completion of any such exchange or swap, (i) the Security Agent, for its own benefit and the benefit of other Secured Creditors, has a first priority lien (subject only to Permitted Liens having priority by operation of Applicable Law) in such equipment, store leases or other Real Property received by the Obligors at least to the same extent as the assets exchanged or swapped pursuant to such transaction (immediately prior to giving effect thereto) subject to no other Lien other than Permitted Liens, and (ii) all Net Sale Proceeds, if any, received in connection with any such exchange or swap of equipment are applied to the Loans if then required in accordance with Section 5.02; and
(xvi) Group Members may sell, transfer, wind up or otherwise dispose of assets, including the Equity Interests of any Subsidiary or any business unit thereof, so long as (a) the amount of any such sale, transfer, winding up or disposal, together with the aggregate amount of any previous sales, transfers, windings up and disposals made by Group Members pursuant to this clause (xvi) shall not exceed in the aggregate an amount equal to 7.5% of the Consolidated Total Assets of the Group, (b) no Default or Event of Default exists or would result therefrom, (c) the Obligor being disposed of has no Loans or Letters of Credit Outstanding, (d) Excess Availability, calculated on a pro forma basis giving effect to such disposition (and as set forth in a Borrowing Base Certificate), shall not be less than the greater of (i) £12,000,000 and (ii) 12.5% of the lesser of (x) the Total Commitment as then in effect and (y) the Borrowing Base (giving pro forma effect to such disposition) at such time, and (e) such sale is in an arm’s-length transaction. To the extent the Required Lenders waive the provisions of this Section 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 10.02 (other than to an Obligor), such Collateral shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and the Security Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. Notwithstanding anything to the contrary contained above in this Section 10.02 or elsewhere in this Agreement, at any time when a Dominion Period is in effect, no Borrowing Base Collateral may be sold, transferred or otherwise disposed of by any Borrower or any Obligor that is not a Borrower (other than sales of inventory in the ordinary course of business) unless the Obligors’ Agent delivers a pro forma Borrowing Base Certificate to the Administrative Agent prior to the sale, transfer or other disposal of such Collateral demonstrating compliance with the Borrowing Base.
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