Common use of Fundamental Changes; Asset Sales Clause in Contracts

Fundamental Changes; Asset Sales. The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the consolidated assets of the Borrower and its consolidated subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary; (ii) any Subsidiary may merge into the Borrower and (iii) the Borrower and any Subsidiary may merge or consolidate with or into any other Person; provided that in each case of the foregoing, in the case of any such merger or consolidation of the Borrower with or into another Person (such that the Borrower is not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower hereunder) and (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and (C) be a corporation organized under the laws of the United States of America or any State thereof.

Fundamental Changes; Asset Sales. The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the consolidated assets of the Borrower and its consolidated subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary; (ii) any Subsidiary may merge into the Borrower Borrower; and (iii) the Borrower and any Subsidiary may merge or consolidate with or into any other Person; provided that in each case of the foregoing, in the case of any such merger or consolidation of the Borrower with or into another Person (such that the Borrower is not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower hereunder) and ), (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and the Beneficial Ownership Regulation and (C) be a corporation organized under the laws of the United States of America or any State thereof.

Fundamental Changes; Asset Sales. The Borrower (a) Parent and the Borrowers will not, and will not permit any Subsidiary other Loan Party or its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itit or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing (i) any Borrower may merge into any other Borrower, provided that in the event the Administrative Borrower is party to such merger it shall be the surviving corporation, and (ii) any Loan Party (other than Parent or any Borrower) may merge into (1) any Borrower in a transaction in which the Borrower is the surviving corporation or (2) any other Loan Party (other than Parent or any Borrower); provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04. (b) Parent and the Borrowers will not, and will not permit any other Loan Party to, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) any of its assets, or all or substantially all of the consolidated assets Capital Stock of the Borrower and any of its consolidated subsidiaries, taken as a whole Subsidiaries (in each case, whether now owned or hereafter acquired), except that any Loan Party (other than the Parent) may sell, transfer, lease or liquidate or dissolve, except thatotherwise dispose of (1) its assets to any Loan Party (other than the Parent), if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i2) any Subsidiary may merge Inventory in the ordinary course of business and Trade Accounts pursuant to the Factoring Agreement, (3) obsolete, worn out or consolidate with or into any surplus tangible personal property, other Subsidiary; (ii) any Subsidiary may merge into the Borrower and (iii) the Borrower and any Subsidiary may merge or consolidate with or into any other Person; provided that in each case than sales of the foregoingInventory, in the case ordinary course of business, (4) tangible personal property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the proceeds of such disposition are promptly applied to the purchase price of such replacement property, (5) the Collateral and other assets sold pursuant to the Joe’s Xxxx Intellectual Property Disposition, (6) the Collateral and other assets sold in the Joe’s Jeans Current Asset Disposition and (7) other assets having a book value not exceeding $250,000 in the aggregate in any Fiscal Year, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing. The Net Cash Proceeds of any such merger sale or consolidation of the Borrower with or into another Person disposition permitted pursuant to this Section 6.03(b) (such that the Borrower is not the surviving corporationother than pursuant to clauses (1), the Person with or into which the Borrower is merged or consolidated (5) and (6) of this Section 6.03(b)) shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance delivered to the Administrative Agent (and shall thereafter be to the Borrower hereunderextent required by Sections 2.12(b) and (Bc) and applied to the extent requested by Obligations as set forth therein. (c) The Borrowers will not, and will not permit any Lenderother Loan Party or its Subsidiaries to, have promptly provided to such Lender all documentation and engage in any business other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required than businesses of the type conducted by the Act Borrowers and their Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto. (Cd) be a corporation organized under Without limiting the laws of foregoing, the United States of America Borrowers will not, and will not permit any other Loan Party or its Subsidiaries to, permit the lapse, termination, invalidation or loss of, or any State thereof.infringement upon, any registered Intellectual Property of a Loan Party that is described on Schedule 3.05 or that is necessary for the business of any Borrower,

Fundamental Changes; Asset Sales. The Borrower (a) Parent and the Borrowers will not, and will not permit any Subsidiary other Loan Party or its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itit or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing (i) any Borrower may merge into any other Borrower, provided that in the event the Administrative Borrower is party to such merger it shall be the surviving corporation, and (ii) any Loan Party (other than Parent or any Borrower) may merge into (1) any Borrower in a transaction in which the Borrower is the surviving corporation or (2) any other Loan Party (other than Parent or any Borrower); provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04. (b) Parent and the Borrowers will not, and will not permit any other Loan Party to, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) any of its assets, or all or substantially all of the consolidated assets Capital Stock of the Borrower and any of its consolidated subsidiaries, taken as a whole Subsidiaries (in each case, whether now owned or hereafter acquired), except that any Loan Party (other than the Parent) may sell, transfer, lease or liquidate or dissolve, except thatotherwise dispose of (1) its assets to any Loan Party (other than the Parent), if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i2) any Subsidiary may merge Inventory in the ordinary course of business and Trade Accounts pursuant to the Factoring Agreement, (3) obsolete, worn out or consolidate with or into any surplus tangible personal property, other Subsidiary; (ii) any Subsidiary may merge into the Borrower and (iii) the Borrower and any Subsidiary may merge or consolidate with or into any other Person; provided that in each case than sales of the foregoingCollateral constituting Revolving Priority Collateral, in the case ordinary course of business, (4) tangible personal property to the extent such property is exchanged for credit against the purchase price of similar replacement property or the proceeds of such disposition are promptly applied to the purchase price of such replacement property, and (5) other assets (other than registered Intellectual Property rights of a Loan Party and sales of Collateral constituting Revolving Priority Collateral) having a book value not exceeding $500,000 in the aggregate in any Fiscal Year, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing. The Net Cash Proceeds of any such merger sale or consolidation of the Borrower with or into another Person (such that the Borrower is not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder disposition permitted pursuant to an agreement or instrument satisfactory in form and substance this Section 6.03(b) (other than pursuant to clause (i)(2) of this Section 6.03(b)) shall be delivered to the Administrative Agent (and shall thereafter be to the Borrower hereunderextent required by Sections 2.12(b) and (Bc) and applied to the extent requested by Obligations as set forth therein. (c) The Borrowers will not, and will not permit any Lenderother Loan Party or its Subsidiaries to, have promptly provided to such Lender all documentation and engage in any business other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required than businesses of the type conducted by the Act Borrowers and their Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto. (Cd) be a corporation organized under Without limiting the laws of foregoing, the United States of America Borrowers will not, and will not permit any other Loan Party or its Subsidiaries to, permit the lapse, termination, invalidation or loss of, or any State thereof.infringement upon, any registered Intellectual Property of a Loan Party that is described on Schedule 3.05 or that is necessary for the business of any Borrower,

Fundamental Changes; Asset Sales. The Borrower will notExcept to the extent otherwise permitted under this Agreement, and will alter the corporate, capital or legal structure (except in a way that does not permit have a Material Adverse Effect) of Holdings, Company or any of its Subsidiaries, consummate any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or consummate any Asset Sale except: (a) any Subsidiary to, merge of Company may be merged with or into Company or consolidate with any other PersonSubsidiary of Company, or permit any other Person to merge into be liquidated, wound up or consolidate with itdissolved into, or sellall or any part of its business, transferproperty or assets may be conveyed, lease sold, leased, transferred or otherwise dispose of (disposed of, in one transaction or in a series of transactions) all , to Company or substantially all any Subsidiary of the consolidated assets of the Borrower and its consolidated subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except Company; provided that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary; (ii) any Subsidiary may merge into the Borrower and (iii) the Borrower and any Subsidiary may merge or consolidate with or into any other Person; provided that in each case of the foregoing, in the case of any such a merger involving Company, Company shall be the continuing or consolidation of the Borrower with surviving Person or into another Person (such that the Borrower is not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower hereunder) and (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and (C) be a corporation Person organized under the laws of the United States of America and expressly assume the obligations of Company pursuant to documents reasonably acceptable to Administrative Agent, (ii) when any Guarantor is merging with any other Subsidiary (A) Guarantor shall be the surviving Person or (B) such transaction shall constitute an Investment which Investment must otherwise be permitted under Section 6.3 and (iii) in the case of any State Asset Sale, such assets shall be transferred to Company or its Subsidiaries or such transaction shall constitute an Investment which Investment must otherwise be permitted under Section 6.3; (b) any Subsidiary may merge with any other Person in order to effect an Investment permitted under Section 6.3; provided that (i) the surviving Person shall be a Subsidiary which, to the extent required, shall have complied with Section 5.9 or (ii) to the extent constituting an Investment, such Investment must otherwise be permitted under Section 6.3; (c) any merger, consolidation, liquidation, wind-up or dissolution, the purpose of which is to effect a disposition otherwise permitted by this Section 6.7; (d) inventory sold in the ordinary course of business; (e) obsolete, worn out or surplus property sold in the ordinary course of business or, properties which are no longer useful or necessary in Company's or its Subsidiaries' business), whether now owned or hereafter acquired; (f) property sold, transferred or disposed of, to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such property is promptly applied to the purchase price of such replacement property; 110 CREDIT AND GUARANTY AGREEMENT EXECUTION 824610-New York Server 7A (g) sales and transfers permitted by Section 6.5 with respect to issuances of Securities of Holdings; (h) the sale, transfer or disposition of Cash Equivalents; (i) the sale, transfer or disposition of accounts in connection with the collection or compromise thereof in the ordinary course of business; (j) the licensing or sublicensing of Intellectual Property in the ordinary course of business on customary terms; (k) Asset Sales by and among Company and its Subsidiaries in the ordinary course of business; provided, that with respect to any Asset Sale by a Credit Party to a Subsidiary of Company that is not a Credit Party, not less than 75% of the consideration received therefor shall be Cash; (l) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of Holdings and its Subsidiaries; (m) consignment or similar arrangements for the sale of assets in the ordinary course of business; (n) Floor Plan Sales; (o) Company and its Subsidiaries may make Asset Sales in any single Fiscal Year of assets that have, in the aggregate, a fair market value not in excess of $50,000,000; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof.; (y) not less than 75% of the consideration received therefor shall be Cash; and (z) the proceeds of such Asset Sales shall be applied as required by Section 2.13(a); and

Fundamental Changes; Asset Sales. The Borrower will not, and will not permit Enter into any Subsidiary to, merge into merger or consolidate with any other Personconsolidation, or permit any other Person to merge into or consolidate with itliquidate, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the consolidated assets of the Borrower and its consolidated subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate wind-up or dissolve, or make any Asset Sale, except (a) any Subsidiary may be merged with or into any Credit Party or any other Subsidiary, provided, that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge if the Borrower is party thereto, the Borrower shall be the continuing or consolidate with or into any other Subsidiary; surviving Person, and (ii) any Subsidiary may merge into if the Borrower is not a party thereto and a Guarantor is a party thereto, then such Guarantor shall be the continuing or surviving Person; (b) Asset Sales (excluding Asset Sales made in connection with the management of Investments in the ordinary course of business), the proceeds of which, when aggregated with the proceeds of all other Asset Sales made within the same Fiscal Year, do not exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets; provided, that, (i) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors or managers (or equivalent governing body) of the applicable Credit Party), (ii) no less than seventy-five percent (75.0%) of such proceeds shall be paid in cash, and (iii) such transaction does not involve a sale or other disposition of receivables, other than receivables owned by, or attributable to, other property concurrently being disposed of in a transaction otherwise permitted under this Section 8.7; (c) Investments made in accordance with Section 8.5; (d) sales of any assets made by any Regulated Subsidiary in the ordinary course of business; and (e) the sale of the real and personal property owned by the Borrower located at 00000 X. Xxxxx Xxxxxxx 00, Xxxxxxxx Xxx, Xxxxx 00000, for an aggregate consideration not to exceed Four Million Dollars ($4,000,000) pursuant to the terms of that certain Farm and Ranch Contract dated as of February 12, 2021 between the Borrower and any Subsidiary the Buyer, as amended by that certain Seller Financing Addendum to Contract Concerning the Property at 00000 X. Xxxxx Xxxxxxx 00, Xxxxxxxx Xxx, Xxxxx 00000 dated as of April 30, 2021, between the Borrower and the Buyer, and as may merge or consolidate with or into any other Personbe further amended from time to time; provided that in each case any amendment with respect to the total consideration paid or property being sold shall require the prior written consent of the foregoing, in the case of any such merger or consolidation of the Borrower with or into another Person Lender (such that the Borrower is consent not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by unreasonably withheld or delayed) (the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower hereunder) and (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and (C) be a corporation organized under the laws of the United States of America or any State thereofSpecified Disposition”).

Fundamental Changes; Asset Sales. (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the consolidated assets its assets, or all or substantially all of the Borrower and stock of any of its consolidated subsidiaries, taken as a whole Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary; the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary in a transaction in which the Borrower surviving entity is a Subsidiary Guarantor and (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to a Subsidiary Guarantor; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04. (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto. (c) The Borrower will not, and will not permit any Subsidiary may merge or consolidate with or into of its Subsidiaries to, make any Asset Sale other Person; provided that in each case than (i) an Asset Sale constituting a sale of the foregoingcapital stock of JVC pursuant to the exercise by Rhonx-Xxxxxxx Xxxmie of a call right under the Put/Call Arrangements, (ii) sales of assets held for disposition and set forth in Schedule 2.09 and (iii) other Asset Sales the case fair market value of which, when combined with all other such Asset Sales previously made since the date of this Agreement in reliance on this clause (iii), does not exceed $10,000,000. The Borrower will not, and will not permit any such merger or consolidation of its Subsidiaries to, make any Asset Sale unless at least 80% of the Borrower with or into another Person (such that consideration received for which consists of cash payable at the Borrower is not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower hereunder) and (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and (C) be a corporation organized under the laws of the United States of America or any State closing thereof.

Fundamental Changes; Asset Sales. The Borrower will notExcept to the extent otherwise permitted under this Agreement, and will alter the corporate, capital or legal structure (except in a way that does not permit have a Material Adverse Effect) of Holdings, Company or any of its Subsidiaries, consummate any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or consummate any Asset Sale except: (a) any Subsidiary to, merge of Company may be merged with or into Company or consolidate with any other PersonSubsidiary of Company, or permit any other Person to merge into be liquidated, wound up or consolidate with itdissolved into, or sellall or any part of its business, transferproperty or assets may be conveyed, lease sold, leased, transferred or otherwise dispose of (disposed of, in one transaction or in a series of transactions) all , to Company or substantially all any Subsidiary of the consolidated assets of the Borrower and its consolidated subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except Company; provided that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary; (ii) any Subsidiary may merge into the Borrower and (iii) the Borrower and any Subsidiary may merge or consolidate with or into any other Person; provided that in each case of the foregoing, in the case of any such a merger involving Company, Company shall be the continuing or consolidation of the Borrower with surviving Person or into another Person (such that the Borrower is not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower hereunder) and (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and (C) be a corporation Person organized under the laws of the United States of America and expressly assume the obligations of Company pursuant to documents reasonably acceptable to Administrative Agent, (ii) when any Guarantor is merging with any other Subsidiary (a) Guarantor shall be the surviving Person or (b) such transaction shall constitute an Investment which Investment must otherwise be permitted under Section 6.3 and (iii) in the case of any State Asset Sale, such assets shall be transferred to Company or its Subsidiaries or such transaction shall constitute an Investment which Investment must otherwise be permitted under Section 6.3; (b) any Subsidiary may merge with any other Person in order to effect an Investment permitted under Section 6.3; provided that (i) the surviving Person shall be a Subsidiary which, to the extent required, shall have complied with Section 5.9 or (ii) to the extent constituting an Investment, such Investment must otherwise be permitted under Section 6.3; (c) any merger, consolidation, liquidation, wind-up or dissolution, the purpose of which is to effect a disposition otherwise permitted by this Section 6.7; (d) inventory sold in the ordinary course of business; (e) obsolete, worn out or surplus property sold in the ordinary course of business or, properties which are no longer useful or necessary in Company's or its Subsidiaries' business), whether now owned or hereafter acquired; (f) property sold, transferred or disposed of, to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such property is promptly applied to the purchase price of such replacement property; (g) sales and transfers permitted by Section 6.5 with respect to issuances of Securities of Holdings; (h) the sale, transfer or disposition of Cash Equivalents; (i) the sale, transfer or disposition of accounts in connection with the collection or compromise thereof in the ordinary course of business; (j) the licensing or sublicensing of Intellectual Property in the ordinary course of business on customary terms; (k) Asset Sales by and among Company and its Subsidiaries in the ordinary course of business; provided, that with respect to any Asset Sale by a Credit Party to a Subsidiary of Company that is not a Credit Party, not less than 75% of the consideration received therefor shall be Cash; (l) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of Holdings and its Subsidiaries; (m) consignment or similar arrangements for the sale of assets in the ordinary course of business; (n) Floor Plan Sales; (o) Company and its Subsidiaries may make Asset Sales in any single Fiscal Year of assets that have, in the aggregate, a fair market value not in excess of $50,000,000; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) not less than 75% of the consideration received therefor shall be Cash; and (z) the proceeds of such Asset Sales shall be applied as required by Section 2.13(a); and (p) In addition to the Asset Sales permitted pursuant to Section 6.7(o) Company and its Subsidiaries may make Asset Sales with respect to the sale of the Retail Business; provided, that (x) the consideration received for such Asset Sale shall be in an amount at least equal to the fair market value thereof; (y) the consideration received therefor shall be consideration that is permitted to be received pursuant to the terms and provisions of the Senior Subordinated Note Indenture; and (z) the proceeds of such Asset Sales shall be applied as required by Section 2.13(a).

Fundamental Changes; Asset Sales. The Borrower will notExcept to the extent otherwise permitted under this Agreement, and will alter the corporate, capital or legal structure (except in a way that does not permit have a Material Adverse Effect) of Holdings, Company or any of its Subsidiaries, consummate any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or consummate any Asset Sale except: (a) any Subsidiary to, merge of Company may be merged with or into Company or consolidate with any other PersonSubsidiary of Company, or permit any other Person to merge into be liquidated, wound up or consolidate with itdissolved into, or sellall or any part of its business, transferproperty or assets may be conveyed, lease sold, leased, transferred or otherwise dispose of (disposed of, in one transaction or in a series of transactions) all , to Company or substantially all any Subsidiary of the consolidated assets of the Borrower and its consolidated subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except Company; provided that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary; (ii) any Subsidiary may merge into the Borrower and (iii) the Borrower and any Subsidiary may merge or consolidate with or into any other Person; provided that in each case of the foregoing, in the case of any such a merger involving Company, Company shall be the continuing or consolidation of the Borrower with surviving Person or into another Person (such that the Borrower is not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower hereunder) and (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and (C) be a corporation Person organized under the laws of the United States of America and expressly assume the obligations of Company pursuant to documents reasonably acceptable to Administrative Agent, (ii) when any Guarantor is merging with any other Subsidiary (A) Guarantor shall be the surviving Person or (B) such transaction shall constitute an Investment which Investment must otherwise be permitted under Section 6.3 and (iii) in the case of any State Asset Sale, such assets shall be transferred to Company or its Subsidiaries or such transaction shall constitute an Investment which Investment must otherwise be permitted under Section 6.3; (b) any Subsidiary may merge with any other Person in order to effect an Investment permitted under Section 6.3; provided that (i) the surviving Person shall be a Subsidiary which, to the extent required, shall have complied with Section 5.9 or (ii) to the extent constituting an Investment, such Investment must otherwise be permitted under Section 6.3; (c) any merger, consolidation, liquidation, wind-up or dissolution, the purpose of which is to effect a disposition otherwise permitted by this Section 6.7; (d) inventory sold in the ordinary course of business; (e) obsolete, worn out or surplus property sold in the ordinary course of business or, properties which are no longer useful or necessary in Company’s or its Subsidiaries’ business, whether now owned or hereafter acquired; (f) property sold, transferred or disposed of, to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such property is promptly applied to the purchase price of such replacement property; (g) sales and transfers permitted by Section 6.5 with respect to issuances of Securities of Holdings; (h) the sale, transfer or disposition of Cash Equivalents; (i) the sale, transfer or disposition of accounts in connection with the collection or compromise thereof in the ordinary course of business; (j) the licensing or sublicensing of Intellectual Property in the ordinary course of business on customary terms; (k) Asset Sales by and among Company and its Subsidiaries in the ordinary course of business; provided, that with respect to any Asset Sale by a Credit Party to a Subsidiary of Company that is not a Credit Party, not less than 75% of the consideration received therefor shall be Cash; (l) leases, subleases, licenses or sublicenses of property in the ordinary course of business and which do not materially interfere with the business of Holdings and its Subsidiaries; (m) consignment or similar arrangements for the sale of assets in the ordinary course of business; (n) Floor Plan Sales; (o) Company and its Subsidiaries may make Asset Sales in any single Fiscal Year of assets that have, in the aggregate, a fair market value not in excess of $50,000,000; provided that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof; (y) not less than 75% of the consideration received therefor shall be Cash; and (z) the proceeds of such Asset Sales shall be applied as required by Section 2.13(a); (p) In addition to the Asset Sales permitted pursuant to Section 6.7(o) Company and its Subsidiaries may make Asset Sales with respect to the sale of the Retail Business; provided, that (x) the consideration received for such Asset Sale shall be in an amount at least equal to the fair market value thereof; (y) the consideration received therefor shall be consideration that is permitted to be received pursuant to the terms and provisions of the Senior Subordinated Note Indenture; and (z) the proceeds of such Asset Sales shall be applied as required by Section 2.13(a); and (q) the Holdings Merger may be effected; provided that Parent shall (i) expressly assume the obligations of, and be subject to the terms and conditions applicable to, Holdings under and in connection with this Agreement and the other Credit Documents to the same extent as Holdings and (ii) create in favor of the Administrative Agent, for the benefit of Lenders, a valid and perfected first priority Lien in the Capital Stock of the Company, and take all such further action and execute all such further documents and instruments as may be reasonably requested by the Administrative Agent in connection therewith.

Fundamental Changes; Asset Sales. The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the consolidated assets of the Borrower Company and its consolidated subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary; (ii) any Subsidiary may merge into the Borrower and (iii) the Borrower and any Subsidiary may merge or consolidate with or into any other Person; provided that in each case of the foregoing, in the case of any such merger or consolidation of the Borrower with or into another Person (such that the Borrower is not the surviving corporation), the Person with or into which the Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower hereunder) and (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and (C) be a corporation organized under the laws of the United States of America or any State thereof.

Fundamental Changes; Asset Sales. The Borrower Company will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the consolidated assets of the Borrower Company and its consolidated subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge or consolidate with or into any other Subsidiary; , (ii) any Subsidiary may merge into the Borrower Company and (iii) any of the Borrower Borrowers and any Subsidiary may merge or consolidate with or into any other Person; provided that that, in each case of the foregoing, in the case of any such merger or consolidation of the Company or any Subsidiary Borrower with or into another Person (such that the Company or such Subsidiary Borrower is not the surviving corporation), the Person with or into which the Company or any Subsidiary Borrower is merged or consolidated shall (A) first or simultaneously with such merger or consolidation agree to be bound by the terms hereof and of the Credit Documents and assume the Company’s or such Subsidiary Borrower’s obligations hereunder and thereunder pursuant to an agreement or instrument satisfactory in form and substance to the Administrative Agent (and shall thereafter be the Borrower Company or a Subsidiary Borrower, as applicable, hereunder) and ), (B) to the extent requested by any Lender, have promptly provided to such Lender all documentation and other information that may be required by such Lender in order to enable compliance with applicable “know-your-customer” and anti-money laundering rules and regulations, including information required by the Act and (C) be a corporation organized under the laws of the United States of America or any State thereof.