Common use of Liquidation, Merger, Sale of Assets Clause in Contracts

Liquidation, Merger, Sale of Assets. The Borrower shall not liquidate, dissolve or enter into any merger, consolidation, joint venture, partnership or other combination or sell, lease, or dispose of all or any substantial portion of its business or assets (excepting sales of goods in the ordinary course of business and excepting sales of notes pursuant to note purchase agreements) as constitutes a substantial portion thereof; provided, however, so long as no Default or Event of Default shall have occurred and be continuing or will occur as a result of such merger or consolidation, Borrower may merge or consolidate with any person provided that the surviving person be a corporation duly incorporated and validly existing under the laws of any state of the United States and provided further that such surviving corporation expressly assumes Borrower's obligations under this Agreement in a writing delivered to the Agent and the Lenders. Without limiting the foregoing, Borrower, and its consolidated subsidiaries, shall not in any fiscal year sell any portion of their business or assets having a value in excess of ten percent (10%) of their Consolidated Tangible Net Worth unless the proceeds of such sale or sales are reinvested within twelve (12) months in assets to be owned and utilized by Borrower in the ordinary course of its business; provided, however, in determining compliance with the foregoing requirement, sales of the following assets will be disregarded: (a) individual assets having a book value of less than Two Hundred Fifty Thousand Dollars ($250,000), not to exceed in the aggregate One Million Five Hundred Thousand Dollars ($1,500,000) in any fiscal year, and (b) Indebtedness of Borrower's members owing to Borrower and incurred in connection with equipment, store or inventory financing provided by Borrower to such members.

Liquidation, Merger, Sale of Assets. The Borrower shall not and shall not permit any of Borrower's Subsidiaries to merge or to liquidate, dissolve or enter into any merger, consolidation, joint venture, partnership or other combination or nor sell, lease, lease or dispose of all or any substantial portion of the Borrower's or any Subsidiary's assets, excluding any swap agreements (as defined in 11 U.S.C. §101) of the Borrower or any of the Borrower's Subsidiaries, except for (a) a merger of such a Subsidiary with the Borrower or another such Subsidiary, (b) a merger of the Borrower or one of its business Subsidiaries if no Default or assets Event of Default has occurred or will occur as a result of the merger and (excepting sales i) the Borrower or such Subsidiary is the surviving corporation or (ii) in a merger involving a Subsidiary of the Borrower, a third party entity is the surviving corporation so long as that third party entity is a wholly-owned Subsidiary of Borrower upon effectiveness of the merger (and so long as such third party entity assumes in writing all obligations and assumptions of the non-surviving Subsidiary under the terms of this Agreement), (c) a sale of goods in the ordinary course of business business, (d) a sale, lease or other disposition of assets by a Subsidiary of the Borrower to the Borrower or to another Subsidiary, (e) any joint venture in which investment is permitted under Section 7.05, or (f) any other sale, lease or other disposition of assets by the Borrower or a Subsidiary of the Borrower if the aggregate net book value of such assets and of all other assets sold, leased or otherwise disposed of by the Borrower and Subsidiaries during the immediately preceding twelve (12) month period (excepting sales permitted under clause (c) or (d) of notes pursuant to note purchase agreementsthis Section 7.02) as constitutes a substantial portion thereof; provided, however, so long as no Default or Event of Default shall have occurred and be continuing or will occur as a result of such merger or consolidation, Borrower may merge or consolidate with any person provided that the surviving person be a corporation duly incorporated and validly existing under the laws of any state of the United States and provided further that such surviving corporation expressly assumes Borrower's obligations under this Agreement in a writing delivered to the Agent and the Lenders. Without limiting the foregoing, Borrower, and its consolidated subsidiaries, shall does not in any fiscal year sell any portion of their business or assets having a value in excess of exceed ten percent (10%) of their Consolidated Tangible Net Worth unless the proceeds of such sale or sales are reinvested within twelve (12) months in assets to be owned and utilized by Borrower in the ordinary course of its business; provided, however, in determining compliance with the foregoing requirement, sales of the following assets will be disregarded: (a) individual assets having a aggregate book value of less than Two Hundred Fifty Thousand Dollars ($250,000), not to exceed in the aggregate One Million Five Hundred Thousand Dollars ($1,500,000) in any fiscal year, and (b) Indebtedness assets of Borrower's members owing to the Borrower and incurred in connection with equipment, store or inventory financing provided by Borrower to such membersits consolidated Subsidiaries at the close of the fiscal quarter last ended on the date of calculation.