Common use of Fundamental Changes and Asset Sales Clause in Contracts

Fundamental Changes and Asset Sales. (a) No Customer will 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) any of its assets, or any of the equity interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except NAI-5001621302v25001621479v5 -38- that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: (i) any Person may merge into BEM in a transaction in which BEM is the surviving corporation; (ii) any Customer may merge into any other Customer (provided that any such merger involving BEM must result in BEM as the surviving entity); (iii) any Customer may sell, transfer, lease or otherwise dispose of its assets to any other Customer; (iv) each Customer may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of equipment that is obsolete or no longer useful in any meaningful way in its business, (C) enter into licenses of technology in the ordinary course of business, and (D) make any other sales, transfers, leases or dispositions that, together with all other property of the Customers previously leased, sold or disposed of during any Fiscal Year of BEM, does not represent property with a book value that (1) is greater than 10% of the Consolidated Total Assets of BEM or (2) is responsible for more than 10% of the consolidated net sales or of the Consolidated Net Income of BEM, in each case, as would be shown in the consolidated financial statements of BEM as at the beginning of the four-quarter period ending with the quarter in which such determination is made (or if financial statements have not been delivered hereunder for that quarter which begins the four quarter period, then the financial statements delivered hereunder for the quarter ending immediately prior to that quarter); (v) any Customer may liquidate or dissolve if BEM determines in good faith that such liquidation or dissolution is in the best interests of BEM and is not materially disadvantageous to the Metal Consignor, and all Consigned Metal consigned to such Customer is either returned to the Metal Consignor or purchased and paid for pursuant to this Agreement; provided that no such liquidation or dissolution shall be permitted hereunder that could reasonably be expected to have a Material Adverse Effect; and (vi) any Customer may engage in: (A) any sale, transfer, lease or other disposal of accounts receivable (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or collection thereof; (B) sale and leaseback transactions; (C) any sale, transfer, lease or other disposal resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of a Customer or any Subsidiary; (D) leases, subleases, licenses or sublicenses of real or personal property in the ordinary course of business, in each case that do not materially interfere with the business of BEM and its Subsidiaries; (E) the termination, surrender or sublease of leases (as lessee), licenses (as licensee), subleases (as sublessee) and sublicenses (as sublicensee) in the ordinary course of business; (F) any sale, transfer, lease or other disposal of fixed assets which are replaced by comparable fixed assets within 180 days of such sale, transfer or lease; (G) any sale, transfer, lease or other disposal of non-core assets, including equity interests; (H) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; (I) the termination of any Swap Agreement; (J) any like kind exchange of property; and (K) dispositions of cash and cash equivalent investmentsCash Equivalent Investments; and (L) any sale, transfer or disposition of Permitted Receivables Facility Assets made pursuant to any Permitted Receivables Facility.

Fundamental Changes and Asset Sales. (a) No Customer will 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) any of its assets, (including pursuant to a sale and leaseback transaction), or any of the equity interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except NAI-5001621302v25001621479v5 -38- that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: : (i) any Person may merge into BEM in a transaction in which BEM is the surviving corporation; ; (ii) any Customer may merge into any other Customer (provided that any such merger involving BEM must result in BEM as the surviving entity); ; (iii) any Customer may sell, transfer, lease or otherwise dispose of its assets to any other Customer; ; (iv) each Customer may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of equipment that is obsolete or no longer useful in any meaningful way in its business, (C) enter into licenses of technology in the ordinary course of business, and (D) make any other sales, transfers, leases or dispositions that, together with all other property of the Customers previously leased, sold or disposed of as permitted by this clause (D) during any Fiscal Year of BEM, does not represent property with a book value that (1) is greater than 10% of the Consolidated Total Assets of BEM or (2) is responsible for more than 10% of the consolidated net sales or of the Consolidated Net Income of BEM, in each case, as would be shown in the consolidated financial statements of BEM as at the beginning of the four-quarter period ending with the quarter in which such determination is made (or if financial statements have not been delivered hereunder for that quarter which begins the four quarter period, then the financial statements delivered hereunder for the quarter ending immediately prior to that quarter); and (v) any Customer may liquidate or dissolve if BEM determines in good faith that such liquidation or dissolution is in the best interests of BEM and is not materially disadvantageous to the Metal ConsignorLender, and all Consigned Precious Metal consigned to such Customer is either returned to the Metal Consignor Lender or purchased and paid for pursuant to this Agreement; provided that no such liquidation or dissolution shall be permitted hereunder that could reasonably be expected to have a Material Adverse Effect; and . (vib) any No Customer may will engage in: (A) any sale, transfer, lease or other disposal of accounts receivable (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or collection thereof; (B) sale and leaseback transactions; (C) any sale, transfer, lease or other disposal resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of a Customer or any Subsidiary; (D) leases, subleases, licenses or sublicenses of real or personal property in the ordinary course of business, in each case that do not materially interfere with the business of BEM and its Subsidiaries; (E) the termination, surrender or sublease of leases (as lessee), licenses (as licensee), subleases (as sublessee) and sublicenses (as sublicensee) in the ordinary course of business; (F) any sale, transfer, lease or other disposal of fixed assets which are replaced by comparable fixed assets within 180 days of such sale, transfer or lease; (G) any sale, transfer, lease or other disposal of non-core assets, including equity interests; (H) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; (I) the termination of any Swap Agreement; (J) any like kind exchange of property; and (K) dispositions of cash and cash equivalent investmentsCash Equivalent Investments; and (L) any sale, transfer or disposition of Permitted Receivables Facility Assets made pursuant to any Permitted Receivables Facilitymaterial extent in any business other than businesses of the type conducted by the Customers on the date of this Agreement and businesses reasonably related thereto. (c) No Customer will change its Fiscal Year from the basis in effect on the date of this Agreement.

Fundamental Changes and Asset Sales. (a) No Customer will 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) any of its assets, (including pursuant to a sale and leaseback transaction), or any of the equity interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except NAI-5001621302v25001621479v5 -38- that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: : (i) any Person may merge into BEM in a transaction in which BEM is the surviving corporation; ; (ii) any Customer may merge into any other Customer (provided that any such merger involving BEM must result in BEM as the surviving entity); ; (iii) any Customer may sell, transfer, lease or otherwise dispose of its assets to any other Customer; ; (iv) each Customer may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of equipment that is obsolete or no longer useful in any meaningful way in its business, (C) enter into licenses of technology in the ordinary course of business, and (D) make any other sales, transfers, leases or dispositions that, together with all other property of the Customers previously leased, sold or disposed of as permitted by this clause (D) during any Fiscal Year of BEM, does not represent property with a book value that (1) is greater than 10% of the Consolidated Total Assets of BEM or (2) is responsible for more than 10% of the consolidated net sales or of the Consolidated Net Income of BEM, in each case, as would be shown in the consolidated financial statements of BEM as at the beginning of the four-quarter period ending with the quarter in which such determination is made (or if financial statements have not been delivered hereunder for that quarter which begins the four quarter period, then the financial statements delivered hereunder for the quarter ending immediately prior to that quarter); and (v) any Customer may liquidate or dissolve if (A) BEM determines in good faith that such liquidation or dissolution is in the best interests of BEM and is not materially disadvantageous to the Metal ConsignorLenders, and all Consigned Metal consigned (B) possession of any Collateral hereunder is transferred to such Customer is either returned to the Metal Consignor one or purchased and paid for pursuant to this Agreement; provided that no more other Customers in connection with such liquidation or dissolution shall be permitted hereunder that could reasonably be expected to have a Material Adverse Effect; and dissolution. (vib) any No Customer may will engage in: (A) any sale, transfer, lease or other disposal of accounts receivable (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or collection thereof; (B) sale and leaseback transactions; (C) any sale, transfer, lease or other disposal resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of a Customer or any Subsidiary; (D) leases, subleases, licenses or sublicenses of real or personal property in the ordinary course of business, in each case that do not materially interfere with the business of BEM and its Subsidiaries; (E) the termination, surrender or sublease of leases (as lessee), licenses (as licensee), subleases (as sublessee) and sublicenses (as sublicensee) in the ordinary course of business; (F) any sale, transfer, lease or other disposal of fixed assets which are replaced by comparable fixed assets within 180 days of such sale, transfer or lease; (G) any sale, transfer, lease or other disposal of non-core assets, including equity interests; (H) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; (I) the termination of any Swap Agreement; (J) any like kind exchange of property; and (K) dispositions of cash and cash equivalent investmentsCash Equivalent Investments; and (L) any sale, transfer or disposition of Permitted Receivables Facility Assets made pursuant to any Permitted Receivables Facilitymaterial extent in any business other than businesses of the type conducted by the Customers on the Closing Date and businesses reasonably related thereto. (c) No Customer will change its Fiscal Year from the basis in effect on the Closing Date.

Fundamental Changes and Asset Sales. (a) No Customer will 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) any of its assets, (including pursuant to a sale and leaseback transaction), or any of the equity interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except NAI-5001621302v25001621479v5 -38- that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: : (i) any Person may merge into BEM in a transaction in which BEM is the surviving corporation; ; (ii) any Customer may merge into any other Customer (provided that any such merger involving BEM must result in BEM as the surviving entity); ; (iii) any Customer may sell, transfer, lease or otherwise dispose of its assets to any other Customer; ; (iv) each Customer may (A) sell inventory in the ordinary course of business, (B) effect sales, trade-ins or dispositions of equipment that is obsolete or no longer useful in any meaningful way in its business, (C) enter into licenses of technology in the ordinary course of business, and (D) make any other sales, transfers, leases or dispositions that, together with all other property of the Customers previously leased, sold or disposed of as permitted by this clause (D) during any Fiscal Year of BEM, does not represent property with a book value that (1) is greater than 10% of the Consolidated Total Assets of BEM or (2) is responsible for more than 10% of the consolidated net sales or of the Consolidated Net Income of BEM, in each case, as would be shown in the consolidated financial statements of BEM as at the beginning of the four-quarter period ending with the quarter in which such determination is made (or if financial statements have not been delivered hereunder for that quarter which begins the four quarter period, then the financial statements delivered hereunder for the quarter ending immediately prior to that quarter); and (v) any Customer may liquidate or dissolve if BEM determines in good faith that such liquidation or dissolution is in the best interests of BEM and is not materially disadvantageous to the Metal ConsignorLender, and all Consigned Precious Metal consigned to such Customer is either returned to the Metal Consignor Lender or purchased and paid for pursuant to this Agreement; provided that no such liquidation or dissolution shall be permitted hereunder that could reasonably be expected to have a Material Adverse Effect; and . (vib) any No Customer may will engage in: (A) any sale, transfer, lease or other disposal of accounts receivable (excluding sales or dispositions in a factoring arrangement) in connection with the compromise, settlement or collection thereof; (B) sale and leaseback transactions; (C) any sale, transfer, lease or other disposal resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of a Customer or any Subsidiary; (D) leases, subleases, licenses or sublicenses of real or personal property in the ordinary course of business, in each case that do not materially interfere with the business of BEM and its Subsidiaries; (E) the termination, surrender or sublease of leases (as lessee), licenses (as licensee), subleases (as sublessee) and sublicenses (as sublicensee) in the ordinary course of business; (F) any sale, transfer, lease or other disposal of fixed assets which are replaced by comparable fixed assets within 180 days of such sale, transfer or lease; (G) any sale, transfer, lease or other disposal of non-core assets, including equity interests; (H) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; (I) the termination of any Swap Agreement; (J) any like kind exchange of property; and (K) dispositions of cash and cash equivalent investmentsCash Equivalent Investments; and (L) any sale, transfer or disposition of Permitted Receivables Facility Assets made pursuant to any Permitted Receivables Facilitymaterial extent in any business other than businesses of the type conducted by the Customers on the Closing Date and businesses reasonably related thereto. (c) No Customer will change its Fiscal Year from the basis in effect on the Closing Date.