Common use of Fundamental Changes; Disposition of Assets Clause in Contracts

Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into (i) any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or (ii) any Asset Sale, except: (a) Asset Sales of inventory; (b) Asset Sales of Cash and Cash Equivalents; (c) Asset Sales of obsolete or worn out personal property and fixtures; (d) Asset Sales in connection with (or as a result of) Investments made in accordance with Section 6.6; provided that (x) other than with respect to De Minimis Out-Parcel Sales, Borrowers shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such Asset Sale as of the last day of the Fiscal Quarter most recently ended and (y) if such Asset Sale is with respect to Collateral, either (i) the applicable Minimum Equity Value Ratio has been satisfied after giving effect to such Asset Sale or (ii) the Collateral Property subject to such Asset Sale shall have been replaced by Replacement Collateral Property and each of the Collateral Substitution Conditions shall have been satisfied; (e) Asset Sales of the Special Consideration Properties and the other Specified Properties; (f) Asset Sales for Fair Market Value, so long as (x) other than with respect to De Minimis Out-Parcel Sales, Borrowers shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such Asset Sale as of the last day of the Fiscal Quarter most recently ended and (y) if such Asset Sale is with respect to Collateral, either (i) the applicable Minimum Equity Value Ratio has been satisfied after giving effect to such Asset Sale or (ii) the Collateral Property subject to such Asset Sale shall have been replaced by Replacement Collateral Property and each of the Collateral Substitution Conditions shall have been satisfied; (g) amalgamations, mergers, liquidations, dissolutions and consolidations among Parent and/or its Subsidiaries or with any Person the purpose of which is to effect an Investment otherwise permitted under Section 6.6 so long as (w) a Borrower is the survivor of any such transaction involving a Borrower, (x) one or more Credit Parties is the survivor of any such transaction involving a Credit Party or the survivor shall expressly assume the Obligations of such Credit Party under the Credit Documents in a manner reasonably acceptable to Administrative Agent, (y) Parent is the survivor of any such transaction involving Parent or, if Parent is not the survivor, (A) the survivor shall expressly assume the Obligations of Parent under the Credit Documents in a manner reasonably acceptable to Administrative Agent, (B) no Default or Event of Default shall occur after giving effect to such transaction and (C) Credit Parties shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such transaction as of the last day of the Fiscal Quarter most recently ended for which financial statements are available and shall provide a certificate to Administrative Agent demonstrating the same, and (z) in the case of a transaction involving any non-Wholly Owned Subsidiary of Borrowers, either a Wholly Owned Subsidiary shall be the survivor of any such transaction or the transaction shall constitute an Investment permitted under Section 6.6; (h) Asset Sales of Capital Stock by any REIT Subsidiary to individuals of preferred equity with a base liquidation preference of no more than $180,000 in the aggregate for any such REIT Subsidiary; (i) Asset Sales as a result of the exercise of (i) a buy/sell provision with respect to any non-Wholly Owned Subsidiary or Joint Venture and (ii) any options to purchase or lease, rights of first offer, rights of first refusal and executed agreements with respect to pending Asset Sales existing as of the Original Closing Date; (j) spin-off of Spinco Inc., as contemplated in the Plan and other transactions specifically contemplated by the Investment Agreements or the Plan; (k) Asset Sales of property as a result of (x) any condemnation proceeding (or credible threat thereof) or Asset Sale in lieu thereof or (y) a casualty; (l) amalgamations, mergers, liquidations, dissolutions and consolidations the purpose of which is to effect any Asset Sale otherwise permitted under the Credit Documents; (m) Asset Sales of personal property 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 Asset Sales are promptly applied to the purchase price of such replacement property; (n) Asset Sales or discounts of accounts receivable or notes in connection with the collection or compromise thereof; (o) Asset Sales in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Credit Parties are not material to the conduct of the business of Parent or its Subsidiaries; (p) the expiration of any option agreement in respect of real or personal property; (q) to the extent constituting an Asset Sale, the granting of any Lien permitted by Section 6.2, and the making of any Restricted Junior Payment permitted by Section 6.4; (r) Asset Sales of Capital Stock in order to qualify members of the board of directors (or similar governing body) of any Credit Party or any of their Subsidiaries if required by applicable law or contract; (s) (i) any involuntary terminations of Hedge Agreements not resulting in an Event of Default under Section 8.1(b), (ii) any voluntary terminations of Hedge Agreements that do not require payment of any termination fee by Parent or any of its Subsidiaries and (iii) any voluntary terminations of Hedge Agreements that require payment of a termination fee so long as Parent is in pro forma compliance with the financial covenant set forth in Section 6.7(b) after giving effect thereto; (t) Asset Sales to any Credit Party or any Wholly Owned Subsidiary of a Credit Party or, in the case of any non-Wholly Owned Subsidiary of a Credit Party, to a Credit Party, a Wholly Owned Subsidiary of a Credit Party or to the owners of such non-Wholly Owned Subsidiary on a pro rata basis; (u) any lease, license, easement or other occupancy agreement entered into in the ordinary course of business; and (v) Asset Sales as a result of any transaction solely in connection with the mortgage or other transfer of property for Permitted Project Level Financing.

Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into (i) any transaction of merger or consolidation, or liquidate, wind-up wind‑up or dissolve itself (or suffer any liquidation or dissolution), or (ii) any Asset Sale, except: (a) Asset Sales of inventory; (b) Asset Sales of Cash and Cash Equivalents; (c) Asset Sales of obsolete or worn out personal property and fixtures; (d) Asset Sales in connection with (or as a result of) Investments made in accordance with Section 6.6; provided that (x) other than with respect to De Minimis Out-Parcel Sales, Borrowers the Parent Guarantor shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such Asset Sale as of the last day of the Fiscal Quarter most recently ended and (y) if such Asset Sale is with respect to Collateral, either (i) the applicable Minimum Equity Value Ratio has been satisfied after giving effect to such Asset Sale or (ii) the Collateral Property subject to such Asset Sale shall have been replaced by Replacement Collateral Property and each of the Collateral Substitution Conditions shall have been satisfiedended; (e) Asset Sales of the Special Consideration Properties and the other Specified Properties[Intentionally Omitted]; (f) Asset Sales for Fair Market Value, so long as (x) other than with respect the consideration received for the Asset Sale is at least Fair Market Value, (y) immediately before and after giving effect to De Minimis Out-Parcel Salessuch Asset Sale, Borrowers no Event of Default has occurred and is continuing and (z) the Parent Guarantor shall be in compliance LA\4027402.11 LA\4027402.11 with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such Asset Sale as of the last day of the Fiscal Quarter most recently ended and (y) if such Asset Sale is with respect to Collateral, either (i) the applicable Minimum Equity Value Ratio has been satisfied after giving effect to such Asset Sale or (ii) the Collateral Property subject to such Asset Sale shall have been replaced by Replacement Collateral Property and each of the Collateral Substitution Conditions shall have been satisfiedended; (g) amalgamations, mergers, liquidations, dissolutions and consolidations among the Parent Guarantor and/or its Subsidiaries or with any Person the purpose of which is to effect an Investment otherwise permitted under Section 6.6 so long as (w) a the Parent Guarantor is the survivor of any such transaction involving the Parent Guarantor (other than to the extent such transaction is between the Parent Guarantor and the Borrower, in which case clause (x) below shall apply), (x) the Borrower is the survivor of any such transaction involving a the Borrower, (xy) one or more Credit Parties is the survivor of any such transaction involving a Credit Party or the survivor shall expressly assume the Obligations of such Credit Party under the Credit Documents in a manner reasonably acceptable to Administrative Agent, (y) Parent is the survivor of any such transaction involving Parent or, if Parent is not the survivor, (A) the survivor shall expressly assume the Obligations of Parent under the Credit Documents in a manner reasonably acceptable to Administrative Agent, (B) no Default or Event of Default shall occur after giving effect to such transaction and (C) Credit Parties shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such transaction as of the last day of the Fiscal Quarter most recently ended for which financial statements are available and shall provide a certificate to Administrative Agent demonstrating the same, and (z) in the case of a transaction involving any non-Subsidiary that is not a Wholly Owned Subsidiary of Borrowersthe Parent Guarantor or of the Borrower, either a Wholly Owned Subsidiary of the Parent Guarantor or the Borrower shall be the survivor of any such transaction or the transaction shall constitute an Investment permitted under Section 6.6; (h) Asset Sales of Capital Stock by any REIT Subsidiary to individuals of preferred equity with a base liquidation preference of no more than $180,000 in the aggregate for any such REIT Subsidiary[Intentionally Omitted]; (i) Asset Sales as a result of the exercise of (i) a buy/sell provision with respect to any non-Subsidiary that is a not a Wholly Owned Subsidiary of its direct parent or Joint Venture any Person that is a Non-Consolidated Entity and (ii) any options to purchase or lease, rights of first offer, rights of first refusal and executed agreements with respect to pending Asset Sales existing as of the Original Closing Date; (j) spin-off of Spinco Inc., as contemplated in the Plan and other transactions specifically contemplated by the Investment Agreements or the Plan[Intentionally Omitted]; (k) Asset Sales of property as a result of (x) any condemnation proceeding (or credible threat thereof) or Asset Sale in lieu thereof or (y) a casualty; (l) amalgamations, mergers, liquidations, dissolutions and consolidations the purpose of which is to effect any Asset Sale otherwise permitted under the Credit Documents; (m) Asset Sales of personal property 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 Asset Sales are promptly applied to the purchase price of such replacement property; (n) Asset Sales or discounts of accounts receivable or notes in connection with the collection or compromise thereof; (o) Asset Sales in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Credit Parties are not material to the conduct of the business of the Parent Guarantor or its Subsidiaries; (p) the expiration of any option agreement in respect of real or personal property;; LA\4027402.11 LA\4027402.11 (q) to the extent constituting an Asset Sale, the granting of any Lien permitted by Section 6.2, and the making of any Restricted Junior Payment permitted by Section 6.4; (r) Asset Sales of Capital Stock Equity Interests in order to qualify members of the board of directors (or similar governing body) of any Credit Party or any of their Subsidiaries if required by applicable law or contract; (s) (i) any involuntary terminations of Hedge Agreements not resulting in an Event of Default under Section 8.1(b), (ii) any voluntary terminations of Hedge Agreements that do not require payment of any termination fee by the Parent Guarantor or any of its Subsidiaries and (iii) any voluntary terminations of Hedge Agreements that require payment of a termination fee so long as the Parent Guarantor is in pro forma compliance with the financial covenant set forth in Section 6.7(b) after giving effect thereto; (t) Asset Sales to any Credit Party or any Wholly Owned Subsidiary of a Credit Party Parent Guarantor or the Borrower or, in the case of any non-Subsidiary that is not a Wholly Owned Subsidiary of a Credit Partythe Parent Guarantor or the Borrower, to a Credit Party, a Wholly Owned Subsidiary of a Credit Party the Parent Guarantor or the Borrower or to the owners of such non-Wholly Owned Subsidiary on a pro rata basis; (u) any lease, license, easement or other occupancy agreement entered into in the ordinary course of business; and (v) Asset Sales as a result of any transaction solely in connection with the mortgage or other transfer of property for Permitted Project Level Financing; provided, that, notwithstanding the foregoing, in no event shall (A) the Parent Guarantor or any Subsidiary sell, transfer or otherwise dispose of any Equity Interests of any Pledged Entity or (B) any Pledged Entity sell, transfer or otherwise dispose of any CDO Bond, Unencumbered Loan, Industrial Portfolio Interest or Real Estate Asset included in the Borrowing Base unless, in the case of clause (A) and clause (B), (i) no Default or Event of Default has occurred and is continuing or would be caused thereby, (ii) after giving effect thereto, the Parent Guarantor would be in compliance on a pro forma basis with the covenants set forth in Section 6.7, (iii) after giving effect thereto, the ratio of the Borrowing Base Value (as calculated in the most recently delivered Borrowing Base Certificate and calculated in a manner so as to give pro forma effect to such sale, transfer or other disposition) to the Total Utilization of Revolving Commitments as of such date is not less than 1.50:1.00 and (iv) after giving effect thereto, each of the conditions set forth in the proviso to the definition of “Borrowing Base Value” would be satisfied.

Fundamental Changes; Disposition of Assets. No Credit Party shall, nor shall it permit any of its Subsidiaries to, enter into (i) any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or (ii) any Asset Sale, except: (a) Asset Sales of inventory; (b) Asset Sales of Cash and Cash Equivalents; (c) Asset Sales of obsolete or worn out personal property and fixtures; (d) Asset Sales in connection with (or as a result of) Investments made in accordance with Section 6.6; provided that (x) other than with respect to De Minimis Out-Parcel Sales, Borrowers the Borrower shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such Asset Sale as of the last day of the Fiscal Quarter most recently ended and (y) if such Asset Sale is with respect to Collateral, either (i) the applicable Minimum Equity Value Ratio has been satisfied after giving effect to such Asset Sale or (ii) the Collateral Property subject to such Asset Sale shall have been replaced by Replacement Collateral Property and each of the Collateral Substitution Conditions shall have been satisfiedended; (e) Asset Sales of the Special Consideration Properties and the other Specified Properties[Intentionally Omitted]; (f) Asset Sales for Fair Market Value, so long as (x) other than with respect the consideration received for the Asset Sale is at least Fair Market Value, (y) immediately before and after giving effect to De Minimis Out-Parcel Salessuch Asset Sale, Borrowers no Event of Default has occurred and is continuing and (z) the Borrower shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such Asset Sale as of the last day of the Fiscal Quarter most recently ended and (y) if such Asset Sale is with respect to Collateral, either (i) the applicable Minimum Equity Value Ratio has been satisfied after giving effect to such Asset Sale or (ii) the Collateral Property subject to such Asset Sale shall have been replaced by Replacement Collateral Property and each of the Collateral Substitution Conditions shall have been satisfiedended; (g) amalgamations, mergers, liquidations, dissolutions and consolidations among Parent \among the Borrower and/or its Subsidiaries or with any Person the purpose of which is to effect an Investment otherwise permitted under Section 6.6 so long as (wx) a the Borrower is the survivor of any such transaction involving a Borrower, (xy) one or more Credit Parties is the survivor of any such transaction involving a Credit Party or the survivor shall expressly assume the Obligations of such Credit Party under the Credit Documents in a manner reasonably acceptable to Administrative Agent, (y) Parent is the survivor of any such transaction involving Parent or, if Parent is not the survivor, (A) the survivor shall expressly assume the Obligations of Parent under the Credit Documents in a manner reasonably acceptable to Administrative Agent, (B) no Default or Event of Default shall occur after giving effect to such transaction and (C) Credit Parties shall be in compliance with the financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such transaction as of the last day of the Fiscal Quarter most recently ended for which financial statements are available and shall provide a certificate to Administrative Agent demonstrating the same, and (z) in the case of a transaction involving any non-Wholly Owned Subsidiary of Borrowersthe Borrower, either a Wholly Owned Subsidiary shall be the survivor of any such transaction or the transaction shall constitute an Investment permitted under Section 6.6; (h) Asset Sales of Capital Stock by any REIT Subsidiary to individuals of preferred equity with a base liquidation preference of no more than $180,000 in the aggregate for any such REIT Subsidiary[Intentionally Omitted]; (i) Asset Sales as a result of the exercise of (i) a buy/sell provision with respect to any non-Wholly Owned Subsidiary or Joint Venture Non-Consolidated Entity and (ii) any options to purchase or lease, rights of first offer, rights of first refusal and executed agreements with respect to pending Asset Sales existing as of the Original Closing Date; (j) spin-off of Spinco Inc., as contemplated in the Plan [Intentionally Omitted]; 97 Credit and other transactions specifically contemplated by the Investment Agreements or the Plan;Guaranty Agreement (k) Asset Sales of property as a result of (x) any condemnation proceeding (or credible threat thereof) or Asset Sale in lieu thereof or (y) a casualty; (l) amalgamations, mergers, liquidations, dissolutions and consolidations the purpose of which is to effect any Asset Sale otherwise permitted under the Credit Documents; (m) Asset Sales of personal property 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 Asset Sales are promptly applied to the purchase price of such replacement property; (n) Asset Sales or discounts of accounts receivable or notes in connection with the collection or compromise thereof; (o) Asset Sales in the ordinary course of business consisting of the abandonment of intellectual property rights which, in the reasonable good faith determination of the Credit Parties are not material to the conduct of the business of Parent the Borrower or its Subsidiaries; (p) the expiration of any option agreement in respect of real or personal property; (q) to the extent constituting an Asset Sale, the granting of any Lien permitted by Section 6.2, and the making of any Restricted Junior Payment permitted by Section 6.4; (r) Asset Sales of Capital Stock Equity Interests in order to qualify members of the board of directors (or similar governing body) of any Credit Party or any of their Subsidiaries if required by applicable law or contract; (s) (i) any involuntary terminations of Hedge Agreements not resulting in an Event of Default under Section 8.1(b), (ii) any voluntary terminations of Hedge Agreements that do not require payment of any termination fee by Parent the Borrower or any of its Subsidiaries and (iii) any voluntary terminations of Hedge Agreements that require payment of a termination fee so long as Parent the Borrower is in pro forma compliance with the financial covenant set forth in Section 6.7(b) after giving effect thereto; (t) Asset Sales to any Credit Party or any Wholly Owned Subsidiary of a Credit Party or, in the case of any non-Wholly Owned Subsidiary of a Credit Party, to a Credit Party, a Wholly Owned Subsidiary of a Credit Party or to the owners of such non-Wholly Owned Subsidiary on a pro rata basis; (u) any lease, license, easement or other occupancy agreement entered into in the ordinary course of business; and (v) Asset Sales as a result of any transaction solely in connection with the mortgage or other transfer of property for Permitted Project Level Financing; 98 Credit and Guaranty Agreement provided, that, notwithstanding the foregoing, in no event shall (A) the Borrower or any Subsidiary sell, transfer or otherwise dispose of any Equity Interests of any Pledged Entity and (B) any Pledged Entity sell, transfer or otherwise dispose of any CDO Bond, Unencumbered Loan or Industrial Portfolio Interest included in the Borrowing Base unless, in the case of clause (A) and clause (B), (i) no Default or Event of Default has occurred and is continuing or would be caused thereby, (ii) after giving effect thereto, the Borrower would be in compliance on a pro forma basis with the covenants set forth in Section 6.7, (iii) after giving effect thereto, the ratio of the Borrowing Base Value (as calculated in the most recently delivered Borrowing Base Certificate and calculated in a manner so as to give pro forma effect to such sale, transfer or other disposition) to the Total Utilization of Revolving Commitments as of such date is not less than 1.50:1.00 and (iv) after giving effect thereto, each of the conditions set forth in the proviso to the definition of “Borrowing Base Value” would be satisfied.