Common use of Merger or Consolidation; Asset Sales Clause in Contracts

Merger or Consolidation; Asset Sales. The Borrower shall not, and shall not permit any of its Subsidiaries to: (a) merge or consolidate with or into any other Person, except that the Borrower may merge with any of its wholly-owned Subsidiaries and any of the Borrower's wholly-owned Subsidiaries may merge with another of the Borrower's wholly-owned Subsidiaries, provided that immediately after giving effect to any such proposed transaction no Default would exist and, in the case of any such merger to which the Borrower is a party, the Borrower is the surviving corporation; or (b) sell, lease, transfer, or otherwise dispose of any of its Property outside of the ordinary course of business, except (i) sales of assets outside the ordinary course of business in an aggregate amount for any fiscal year not to exceed $1,000,000.00 and (ii) sales of assets outside the ordinary course of business which the Borrower has provided the Agent and the Banks with 10 days' advance notice of, provided that such proposed sales will not in the judgment of the Majority Banks cause the aggregate outstanding amount of the Revolving Advances plus the sum of the Letter of Credit Exposure and the Existing Letter of Credit Exposure to exceed the Borrowing Base, after removing such assets from the Borrowing Base by subtracting from the Borrowing Base the value of the assets proposed to be sold as determined from the most recent information compiled by the Agent and the Banks in connection with the most recent redetermination of the Borrowing Base, and the Borrower agrees that immediately following any such sale the Majority Banks will redetermine the Borrowing Base by so subtracting the value of such assets sold from the Borrowing Base.

Merger or Consolidation; Asset Sales. The Borrower shall not, and shall not permit any of its Subsidiaries to: (a) merge or consolidate with or into any other Person, except that (i) the Borrower may merge with any of its wholly-owned Subsidiaries and any of the Borrower's ’s wholly-owned Subsidiaries may merge with another of the Borrower's ’s wholly-owned Subsidiaries, provided and (ii) in connection with a sale permitted pursuant to Section 6.4(b)(i) of a Subsidiary of Borrower that (A) is not a Material Subsidiary and (B) does not own Borrowing Base Assets, such Subsidiary may merge with a Person that is not a wholly-owned Subsidiary of Borrower; provided, in each case, that immediately after giving effect to any such proposed transaction no Default would exist and, in the case of any such merger to which the Borrower is a party, the Borrower is the surviving corporation; or (b) sell, lease, transfer, or otherwise dispose of any of its Property outside of the ordinary course of business, except for (i) sales of assets outside the ordinary course of business of assets that are not Borrowing Base Assets, in an aggregate amount for any fiscal year not to exceed $1,000,000.00 15,000,000.00, and (ii) sales of assets outside the ordinary course of business of Borrowing Base Assets, of which the Borrower has provided the Agent and the Banks with 10 days' ’ advance notice ofnotice, provided that such proposed sales will not in the judgment of the Majority Banks cause the aggregate outstanding amount of the Revolving Advances plus the sum of the Letter of Credit Exposure and the Existing Letter of Credit Exposure to exceed the Borrowing Base, after removing such assets from giving effect to any reduction of the Borrowing Base by subtracting from the Borrowing Base the value of the assets proposed to that would be sold as determined from the most recent information compiled by the Agent and the Banks required under Section 2.2(e) in connection with the most recent redetermination of the Borrowing Base, and the Borrower agrees that immediately following any such sale the Majority Banks will redetermine the Borrowing Base by so subtracting the value of such assets sold from the Borrowing Basesale.

Merger or Consolidation; Asset Sales. The Borrower shall will not, and shall will not permit any of its Subsidiaries to:, (a) merge or consolidate with or into any other Person, except that (i) the Borrower may merge with any of its wholly-owned Subsidiaries and (ii) any of the Borrower's wholly-owned Subsidiaries may merge with another of the Borrower's wholly-owned Subsidiaries, provided that immediately after giving effect to any such proposed transaction no Default would exist and, and in the case of any such merger to which the Borrower is a party, the Borrower is the surviving corporation; corporation or (b) sell, lease, transfer, or otherwise dispose of any asset (including stock of its Property outside a Subsidiary) other than the Devcon Stock Sale or the sale of certain assets acquired in connection with Project QC if the fair market value of such asset plus the fair market value of all assets (including stock of a Subsidiary) disposed of during the four fiscal quarters immediately preceding the date of such asset sale would exceed 5% of Tangible Net Assets of the ordinary course of businessBorrower; provided that, except (i) for sales of assets outside in a single transaction or in a related series of transactions with a fair market value in excess in $15,000,000.00, the ordinary course Administrative Agent shall have received a Compliance Certificate demonstrating pro forma financial covenant compliance, including adjustments to the Borrower's EBITDA for such divested assets. Upon the closing of business in an aggregate amount for any fiscal year transaction permitted by this Section 6.04 involving a Guarantor the shares of stock of which is sold or that does not to exceed $1,000,000.00 and (ii) sales of assets outside survive a merger, such Guarantor shall automatically be released from its obligations under its Guaranty, and, if requested by the ordinary course of business which Borrower, the Borrower has provided the Agent Agent, on its behalf and the Banks with 10 days' advance notice of, provided that such proposed sales will not in the judgment behalf of the Majority Banks cause the aggregate outstanding amount of the Revolving Advances plus the sum of the Letter of Credit Exposure and the Existing Letter of Credit Exposure to exceed the Borrowing BaseBanks, after removing such assets from the Borrowing Base by subtracting from the Borrowing Base the value of the assets proposed to be sold as determined from the most recent information compiled by the Agent and the Banks in connection with the most recent redetermination of the Borrowing Base, and the Borrower agrees that immediately following any such sale the Majority Banks will redetermine the Borrowing Base by so subtracting the value shall execute a release of such assets sold Guarantor from the Borrowing Baseits Guaranty.

Merger or Consolidation; Asset Sales. The Borrower shall not, and shall not permit any of its Subsidiaries to: (a) merge or consolidate with or into any other Person, except that the Borrower may merge with any of its wholly-owned Subsidiaries and any of the Borrower's wholly-owned Subsidiaries may merge with another of the Borrower's wholly-owned Subsidiaries, provided that immediately after giving effect to any such proposed transaction no Default would exist and, in the case of any such merger to which the Borrower is a party, the Borrower is the surviving corporation; or (b) sell, lease, transfer, or otherwise dispose of any of its Property outside of the ordinary course of business, except (i) sales of assets outside the ordinary course of business in an aggregate amount for any fiscal year not to exceed $1,000,000.00 and (ii) sales of assets outside the ordinary course of business which the Borrower has provided the Agent and the Banks with 10 days' advance notice of, provided that such proposed sales will not in the judgment of the Majority Banks cause the aggregate outstanding amount of the Revolving Advances plus the sum of the Letter of Credit Exposure and the Existing Letter of Credit Exposure to exceed the Borrowing Base, after removing such assets from the Borrowing Base by subtracting from the Borrowing Base the value of the assets proposed to be sold as determined from the most recent information compiled by the Agent and the Banks in connection with the most recent redetermination of the Borrowing Base, and the Borrower agrees that immediately following any such sale the Majority Banks will redetermine the Borrowing Base by so subtracting the value of such assets sold from the Borrowing Base.the

Merger or Consolidation; Asset Sales. The Borrower shall not, and shall not permit any of its Subsidiaries to: (a) merge or consolidate with or into any other Person, except that the Borrower may merge with any of its wholly-owned Subsidiaries and any of the Borrower's wholly-owned Subsidiaries may merge with another of the Borrower's wholly-owned Subsidiaries, provided that immediately after giving effect to any such proposed transaction no Default would exist and, in the case of any such merger to which the Borrower is a party, the Borrower is the surviving corporation; or (b) sell, lease, transfer, or otherwise dispose of any of its Property outside of the ordinary course of business, except (i) sales of assets outside the ordinary course of business in an aggregate amount for any fiscal year not to exceed $1,000,000.00 5,000,000.00 and (ii) sales of assets outside the ordinary course of business which the Borrower has provided the Agent and the Banks with 10 days' advance notice of, provided that such proposed sales will not in the judgment of the Majority Banks cause the aggregate outstanding amount of the Revolving Advances plus the sum of the Letter of Credit Exposure and the Existing Letter of Credit Exposure to exceed the Borrowing Base, Base after removing such assets from the Borrowing Base by subtracting from the Borrowing Base the value of the assets proposed to be sold as determined from the most recent information compiled by the Agent and the Banks in connection with the most recent redetermination of the Borrowing Base, and the Borrower agrees that immediately following any such sale the Majority Banks will redetermine the Borrowing Base by so subtracting the value of such assets sold from the Borrowing Baseunder Section 2.2(e).

Merger or Consolidation; Asset Sales. The Borrower shall not, and shall not permit any of its Subsidiaries to: (a) merge or consolidate with or into any other Person, except that (i) the Borrower may merge with any of its wholly-owned Subsidiaries and any of the Borrower's ’s wholly-owned Subsidiaries may merge with another of the Borrower's ’s wholly-owned Subsidiaries, provided and (ii) in connection with a sale permitted pursuant to Section 6.4(b)(i) of a Subsidiary of Borrower that (A) is not a Material Subsidiary and (B) does not own Borrowing Base Assets, such Subsidiary may merge with a Person that is not a wholly-owned Subsidiary of Borrower; provided, in each case, that immediately after giving effect to any such proposed transaction no Default would exist and, in the case of any such merger to which the Borrower is a party, the Borrower is the surviving corporation; or (b) sell, lease, transfer, or otherwise dispose of any of its Property outside Property, except for (i) dispositions of assets that are not Borrowing Base Assets or Mortgaged Properties either (y) in the ordinary course of business, except business or (iz) sales outside of assets outside the ordinary course of business in an aggregate amount for any fiscal year not to exceed $1,000,000.00 25,000,000, and (ii) sales of assets outside dispositions, whether or not in the ordinary course of business business, of Borrowing Base Assets, including Mortgaged Properties, of which the Borrower has provided the Agent and the Banks with 10 days' ’ advance notice ofnotice, provided that (y) such proposed sales dispositions will not in the judgment of the Majority Banks cause the aggregate outstanding amount of the Revolving Advances plus the sum of the Letter of Credit Exposure and the Existing Letter of Credit Exposure to exceed the Borrowing Base, after removing such assets from giving effect to any reduction of the Borrowing Base by subtracting from that would be required under Section 2.2(e) in connection with such sale and (z) in the Borrowing Base case of any disposition of a Mortgaged Property, at the value time of such disposition the Mortgaged Property Value is not less than 80% of the Oil and Gas Property Value, as set forth in the engineering report most recently delivered pursuant to Section 5.6(c), after giving effect to (1) any reduction of such present value (which shall be the present value given to such assets proposed to be sold as determined from the in such most recent information compiled engineering report, including the applicable stated discount utilized therein, in connection with such disposition) on a cumulative basis with all sales of Mortgaged Properties since the date of such report and (2) the aggregate present value, as set forth in such report or otherwise reasonably determined by the Agent and discounted at the Banks applicable rate stated in connection such report, of any additional Oil and Gas Properties mortgaged by the Borrower or the Guarantors in accordance with the most recent redetermination requirements of Section 5.11 prior to or concurrently with such disposition (on a cumulative basis with all mortgages of additional Oil and Gas Properties since the Borrowing Base, and the Borrower agrees that immediately following any such sale the Majority Banks will redetermine the Borrowing Base by so subtracting the value date of such assets sold from the Borrowing Basereport).