Common use of Merger and Sale of Assets Clause in Contracts

Merger and Sale of Assets. No Company shall merge or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person other than Inventory in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any Borrower (provided that such Borrower shall be the continuing or surviving Person) or (ii) any one or more Credit Parties, provided that the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party; (c) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to (i) a Borrower, or (ii) any Wholly-Owned Subsidiary that is a Domestic Subsidiary that is a Credit Party; or (d) any Company may (i) dispose of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; (ii) sell or otherwise dispose of Cash Equivalents for fair market value; or (iii) dispose of obsolete, damaged, surplus, unused or worn out property in the ordinary course of business in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7.

Merger and Sale of Assets. No Company shall merge merge, amalgamate or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person (other than Inventory Borrower or any other Credit Party) other than in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell Subsidiary of Parent (other than Borrower or dispose a Guarantor of assets (iPayment) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any Borrower (provided that such Borrower shall be the continuing or surviving Person) or (ii) any one or more Credit Parties, provided that the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party; (c) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to any Company; (i) a Borrower, or (iib) any Wholly-Owned Subsidiary of Borrower may merge with or sell, lease, transfer or otherwise dispose of any of its assets to any other Subsidiary of Borrower; (c) any Company may sell, lease, transfer or otherwise dispose of any assets that is a Domestic Subsidiary that is a Credit Party; orare obsolete or no longer useful in such Company’s business; (d) any Company may (i) dispose of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; (ii) sell sell, lease, transfer or otherwise dispose (whether in one transaction or a series of Cash Equivalents for related transactions) of any of its assets to any other Person, so long as the aggregate fair market value; value of the assets being sold, leased, transferred or (iii) dispose of obsoleteotherwise disposed of, damaged, surplus, unused or worn out property in the ordinary course of business in amounts not to exceed $250,000 in the aggregate for all Companies Companies, shall not constitute (i) during the twelve (12) month period ending with the month prior to the month in which any Fiscal Year so long such sale, lease, transfer or disposition, a Substantial Portion as determined under subparts (a) and (b) of the proceeds definition of Substantial Portion, or (ii) on or after the date of this Agreement, a Substantial Portion as determined under subparts (c) and (d) of the definition of Substantial Portion; and (e) Acquisitions may be effected in accordance with the provisions of Section 5.13 hereof. Notwithstanding anything in this Section 5.12 to the contrary, (A) no sale, lease, transfer or other disposition of assets by a Company may be effectuated (other than in the ordinary course or pursuant to subsections (a) or (b) above) if any Default or Event of Default has occurred and is continuing, and (B) all sales, leases, transfers and other dispositions of assets at any time shall be for not materially less than the fair market value of such sale or disposition are applied assets as determined in the manner set forth in Section 2.7good faith by Parent.

Merger and Sale of Assets. No Company shall merge merge, amalgamate or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person other than Inventory in the ordinary course of businessPerson, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any the Borrower (provided that such the Borrower shall be the continuing or surviving Person) or ), (ii) any one or more Credit Parties, Subsidiary Guarantors (provided that a Subsidiary Guarantor shall be the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party; Person), or (ciii) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to both such transfer)Companies are not Credit Parties, any Subsidiary other Company; (b) any Company may sell, lease, transfer or otherwise dispose of any of its assets to (i) a the Borrower, or (ii) any Wholly-Owned Subsidiary Guarantor, or (iii) so long as both such Companies are not Credit Parties, any other Company; (c) any Company may sell, lease, transfer or otherwise dispose of any assets that is a Domestic Subsidiary that is a Credit Party; orare obsolete or no longer used in such Company’s business; (d) any Company may (i) sell, lease, transfer or otherwise dispose of accounts receivable in connection with the collection any inventory or compromise thereof other assets in the ordinary course of business; ; (iie) sell Acquisitions may be effected in accordance with the provisions of Section 5.13 hereof; (f) any Company may sell, transfer or otherwise dispose of Cash Equivalents its accounts receivables, either pursuant to a Permitted Receivables Facility or pursuant to other sales by such Company, in an aggregate amount for fair market value; or (iii) dispose of obsolete, damaged, surplus, unused or worn out property in the ordinary course of business in amounts all Companies not to exceed Fifty Million Dollars ($250,000 50,000,000) during any fiscal year of the Borrower; (g) any Company may sell, lease, transfer or otherwise dispose of intellectual property in the an aggregate amount for all Companies in not to exceed Twenty Million Dollars ($20,000,000) during any Fiscal Year fiscal year of Borrower; (h) any Company may sell, lease, transfer or otherwise dispose of any non-core assets so long as the proceeds assets disposed (i) are sold for their fair market value and on an arms-length basis, and (ii) generate revenues in an amount not to exceed, when combined with all such assets disposed by all Companies during the Availability Period, two percent (2%) of the Borrower’s Consolidated gross revenue for the preceding period of twelve (12) consecutive months; (i) each of the Companies listed on Schedule 5.12 hereto may be liquidated, wound up or dissolved at any time so long as such Subsidiaries are Immaterial Subsidiaries; (j) any Company may sell, lease, transfer or other dispose of its Equity Interests in a Foreign Subsidiary (and to the extent any such Equity Interests are in a First Tier Foreign Subsidiary and are pledged under the Collateral Documents, such pledge shall be deemed to be automatically released) so long as such Foreign Subsidiary remains a Subsidiary; and (k) any Company may cause a Foreign Subsidiary to dissolve or be liquidated under local law so long as the assets of such sale or disposition are applied in Foreign Subsidiary become the manner set forth in Section 2.7assets of another Company.

Merger and Sale of Assets. No Company shall merge Merge or consolidate with any other Person, liquidate, wind-up or dissolve itself, corporation or sell, lease or lease, transfer or otherwise dispose dispose, in any single transaction or series of related transactions, of assets which shall have contributed 10% or more to Consolidated Pre-Tax Income for any of the three fiscal years then most recently ended, or assets whose aggregate fair value (as determined in good faith by the board of directors of the Managing General Partner or the Company, as the case may be) shall exceed 10% of Consolidated Net Assets, to any Person, except that (i) any 75%-owned Subsidiary which is free from any Debt to any Person other than Inventory in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any Borrower (provided that such Borrower shall be the continuing or surviving Person) or (ii) any one or more Credit Parties, provided that other 75%-owned Subsidiaries which are free from any Debt to any Person other than the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party;Company, (cii) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or a 75%-owned Subsidiary, (i) a Borrower, or (iiiii) any Wholly-Owned Subsidiary that is may sell or otherwise dispose of all or substantially all of its assets subject to the conditions specified in paragraph 6A(4) with respect to a Domestic Subsidiary that is a Credit Party; orsale of the stock of such Subsidiary, (div) any the Company may enter into any merger in which it is the surviving entity, provided that no Default or Event of Default would exist immediately after giving effect thereto, (iv) dispose of accounts receivable in connection with the collection or compromise thereof Company may, in the ordinary course of business; (ii) , sell or otherwise dispose of Cash Equivalents for fair market value; (a) buildings and parcels of land not used in connection with the business of the Company or any Subsidiary and (iiib) dispose of obsoletevehicles, damagedand (vi) any Subsidiary may merge or consolidate with any other corporation, surplusprovided that, unused immediately after giving effect to such merger or worn out property in consolidation, the ordinary course of business in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds continuing or surviving corporation of such sale merger or disposition are applied in the manner set forth in Section 2.7.consolidation shall constitute a Subsidiary and no Default or Event of Default would exist;

Merger and Sale of Assets. No Company shall merge merge, amalgamate or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person other than Inventory in the ordinary course of businessPerson, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any Borrower (provided that such Borrower shall be the continuing or surviving Person) or ), (ii) any one or more Credit Parties, Guarantors of Payment (provided that a Guarantor of Payment shall be the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party; Person), or (ciii) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to both such transfer)Companies are Non-Credit Parties, any Subsidiary other Company; (b) any Company may sell, lease, transfer or otherwise dispose of any of its assets to (i) a Borrower, or (ii) any WhollyGuarantor of Payment, or (iii) so long as both such Companies are Non-Owned Subsidiary Credit Parties, any other Company; (c) any Company may sell, lease, transfer or otherwise dispose of any assets that is a Domestic Subsidiary that is a Credit Party; orare obsolete or no longer used in such Company’s business; (d) any Company may (i) sell, lease, transfer or otherwise dispose of accounts receivable in connection with the collection any inventory or compromise thereof other assets in the ordinary course of business; ; (iie) sell Acquisitions may be effected in accordance with the provisions of Section 5.13 hereof; (f) any Company may sell, transfer or otherwise dispose of Cash Equivalents its accounts receivables, either pursuant to a Permitted Receivables Facility or pursuant to other sales by such Company, in an aggregate amount for fair market value; or (iii) dispose of obsolete, damaged, surplus, unused or worn out property in the ordinary course of business in amounts all Companies not to exceed Twenty Million Dollars ($250,000 20,000,000) during any fiscal year of Borrower; (g) any Company may sell, lease, transfer or otherwise dispose of intellectual property in the an aggregate amount for all Companies in not to exceed Seventeen Million Five Hundred Thousand Dollars ($17,500,000) during any Fiscal Year fiscal year of Borrower; (h) any Company may sell, lease, transfer or otherwise dispose of any non-core assets so long as the proceeds assets disposed (i) are sold for their fair market value and on an arms-length basis, and (ii) generate revenues in an amount not to exceed, when combined with all such assets disposed by all Companies during the Commitment Period, two percent (2%) of Borrower’s Consolidated gross revenue for the preceding period of twelve (12) consecutive months; and (i) each of the Companies listed on Schedule 5.12 hereto may be liquidated, wound up or dissolved at any time so long as such sale or disposition Subsidiaries are applied in the manner set forth in Section 2.7Immaterial Subsidiaries.

Merger and Sale of Assets. No Company shall merge merge, amalgamate or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person other than Inventory in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 7500,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such mergermerger or amalgamation) any Subsidiary may merge or amalgamate with (i) any Borrower (provided that such Borrower shall be the continuing or surviving Person) or (ii) any one or more Credit Parties, provided that the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party; (c) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to (i) a Borrower, or (ii) any Wholly-Wholly- Owned Subsidiary that is a Domestic Subsidiary that is a Credit Party; or (d) any Company may (i) dispose of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; (ii) sell or otherwise dispose of Cash Equivalents for fair market value; or (iii) dispose of obsolete, damaged, surplus, unused or worn out property in the ordinary course of business in amounts not to exceed $250,000 7500,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7. ; and (e) Dormant Subsidiary may be amalgamated into Excell Canada pursuant to Section 5.28.

Merger and Sale of Assets. No Company shall merge merge, amalgamate or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person other than Inventory in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 750,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such mergermerger or amalgamation) any Subsidiary may merge or amalgamate with (i) any Borrower (provided that such a Borrower shall be the continuing or surviving Person) or (ii) any one or more Credit Parties, provided that the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party; (c) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to (i) a Borrower, or (ii) any Wholly-Owned Subsidiary that is a Domestic Subsidiary that is a Credit Party; orand (d) any Company may (i) dispose of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; (ii) sell or otherwise dispose of Cash Equivalents for fair market value; or (iii) dispose of obsolete, damaged, surplus, unused or worn out property in the ordinary course of business in amounts not to exceed $250,000 750,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7.

Merger and Sale of Assets. No Company shall merge Merge with or into or consolidate with, or permit any of its Subsidiaries to merge with or into or consolidate with, any other Person, liquidate, wind-up or dissolve itself, ; or sell, lease or lease, transfer or otherwise dispose of any assets to if the book value or fair market value (whichever is greater) of all the assets sold, leased, transferred or otherwise disposed of by the Borrower and its Subsidiaries in any Person other than Inventory in 12-month period exceeds 10% of Consolidated Equity, calculated as of the ordinary course end of businessthe most recently ended fiscal quarter, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any the Borrower (provided that such provided, that, the Borrower shall be the continuing or surviving Person) or (ii) with or into any one domestic Wholly-Owned Subsidiary other than a Subsidiary that is not a Guarantor, except that a Subsidiary that is not a Guarantor may merge with or more Credit Partiesinto another Subsidiary that is not a Guarantor; and provided further, provided that that, such domestic Wholly-Owned Subsidiary shall be the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit PartyPerson; (cb) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Borrower or a domestic Wholly-Owned Subsidiary, other than a Subsidiary that is not a Guarantor; (c) the Borrower or any Subsidiary may dispose of (i) a Borrower, any assets which in the good faith judgment of the Borrower are obsolete or otherwise unproductive or (ii) any Wholly-Owned Subsidiary that is a Domestic Subsidiary that is a Credit Party; orpermitted investment of the type set forth in Sections 7.03(a) or 7.03(l); (d) any Company the Borrower may merge with another domestic Person so long as the Borrower is the surviving Person, no Default or Event of Default exists or would result after giving effect to the completion of such merger and such merger would otherwise qualify as a Permitted Acquisition; (e) Dispositions of notes and accounts receivable permitted pursuant to Section 7.05; (f) Dispositions of equipment or real property to the extent that (i) dispose such property is exchanged for credit against the purchase price of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; similar replacement property, (ii) sell or otherwise dispose the proceeds of Cash Equivalents for fair market value; such Disposition are reasonably promptly applied to the purchase price of such replacement property, or (iii) dispose in the case of obsoleteequipment or real property, damagedsuch equipment or real property is no longer useful in or material to the continued operation of the Borrower’s or a Subsidiary’s business. (g) Dispositions of leases of property, surplusincluding real property, unused or worn out property in each case in the ordinary course of business in amounts not materially interfering with the conduct of the business of the Borrower and its Subsidiaries; (h) Dispositions pursuant to exceed $250,000 in unwinding of any Swap Contracts; and (i) Dispositions pursuant to the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.72020 Convertible Notes Warrant Transactions.

Merger and Sale of Assets. No Company shall merge merge, amalgamate or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person other than Inventory in the ordinary course of businessPerson, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any the Borrower (provided that such the Borrower shall be the continuing or surviving Person) or ), (ii) any one or more Credit Parties, Subsidiary Guarantors (provided that a Subsidiary Guarantor shall be the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party; Person), or (ciii) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to both such transfer)Companies are not Credit Parties, any Subsidiary other Company; (b) any Company may sell, lease, transfer or otherwise dispose of any of its assets to (i) a the Borrower, or (ii) any Wholly-Owned Subsidiary Guarantor, or (iii) so long as both such Companies are not Credit Parties, any other Company; (c) any Company may sell, lease, transfer or otherwise dispose of any assets that is a Domestic Subsidiary that is a Credit Party; orare obsolete or no longer used in such Company’s business; (d) any Company may (i) sell, lease, transfer or otherwise dispose of accounts receivable in connection with the collection any inventory or compromise thereof other assets in the ordinary course of business; ; (iie) sell Acquisitions may be effected in accordance with the provisions of Section 5.13 hereof; (f) any Company may sell, transfer or otherwise dispose of Cash Equivalents its accounts receivables, either pursuant to a Permitted Receivables Facility or pursuant to other sales by such Company, in an aggregate amount for fair market value; or (iii) dispose of obsolete, damaged, surplus, unused or worn out property in the ordinary course of business in amounts all Companies not to exceed Twenty Million Dollars ($250,000 20,000,000) during any fiscal year of the Borrower; (g) any Company may sell, lease, transfer or otherwise dispose of intellectual property in the an aggregate amount for all Companies in not to exceed Twenty Million Dollars ($20,000,000) during any Fiscal Year fiscal year of Borrower; (h) any Company may sell, lease, transfer or otherwise dispose of any non-core assets so long as the proceeds assets disposed (i) are sold for their fair market value and on an arms-length basis, and (ii) generate revenues in an amount not to exceed, when combined with all such assets disposed by all Companies during the Availability Period, two percent (2%) of the Borrower’s Consolidated gross revenue for the preceding period of twelve (12) consecutive months; (i) each of the Companies listed on Schedule 5.12 hereto may be liquidated, wound up or dissolved at any time so long as such Subsidiaries are Immaterial Subsidiaries; (j) any Company may sell, lease, transfer or other dispose of its Equity Interests in a Foreign Subsidiary (and to the extent any such Equity Interests are in a First Tier Foreign Subsidiary and are pledged under the Collateral Documents, such pledge shall be deemed to be automatically released) so long as such Foreign Subsidiary remains a Subsidiary; and (k) any Company may cause a Foreign Subsidiary to dissolve or be liquidated under local law so long as the assets of such sale or disposition are applied in Foreign Subsidiary become the manner set forth in Section 2.7assets of another Company.

Merger and Sale of Assets. No Company shall merge or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of effect any assets to any Person Disposition other than Inventory in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets Subsidiary (iother than the Receivables Subsidiary) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any Borrower (provided that such Borrower shall be the continuing or surviving Person) ), or (ii) any one or more Credit Parties, provided that the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit PartyGuarantors of Payment; (cb) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary (other than the Receivables Subsidiary) may sell, lease, transfer or otherwise dispose of any of its assets to (i) a Borrower, or (ii) any Wholly-Owned one or more Guarantors of Payment; (c) in addition to any merger permitted pursuant to subpart (a) above, any Foreign Subsidiary that is a Domestic Subsidiary that is a Credit Party; ormay merge with any one or more Foreign Subsidiaries; (d) in addition to any Company Disposition permitted pursuant to subpart (b) above, any Foreign Subsidiary may (i) sell, lease, transfer or otherwise dispose of accounts receivable any of its assets to any one or more Foreign Subsidiaries; (e) in addition to any Disposition permitted pursuant to subparts (a) through (d) above, AGSC or any Receivables Facility Participant may sell the Receivables Related Assets in connection with the collection or compromise thereof Permitted Receivables Facility; and (f) in addition to any Disposition permitted pursuant to subparts (a) through (e) above, any Company may effect a Disposition so long as (i) the ordinary course of business; Companies shall be in full compliance with the Loan Documents both prior to and subsequent to the transaction, (ii) sell no Default or otherwise dispose Event of Cash Equivalents for fair market value; Default shall then exist or immediately after such Disposition will exist, (iii) dispose the Companies shall be in compliance with the financial covenants set forth in Section 5.7 hereof both immediately before and after giving pro forma effect to such Disposition, (iv) the Companies shall receive consideration equivalent to the fair market value (as determined by the Board of obsoleteDirectors of Borrower) of the assets disposed of in connection with such Disposition, damaged, surplus, unused or worn out property (v) at least seventy-five percent (75%) of the consideration received in connection with such Disposition shall be in the ordinary course form of cash (other than the Disposition of substantially all of the non-core greeting card assets comprising the party goods and candle business of Borrower, the non-cash portion of which shall not at any one time exceed Fifty Million Dollars ($50,000,000)), (vi) an amount equal to at least fifty percent (50%) of the proceeds in amounts not to exceed excess of Ten Million Dollars ($250,000 10,000,000) in the aggregate for with respect to all such Dispositions shall have been applied in accordance with Section 2.8(c) hereof, and (vii) unless the Companies in any Fiscal Year so long as shall use the remaining proceeds of such Disposition to effect an Acquisition permitted pursuant to Section 5.13 hereof within one hundred eighty (180) days after the receipt of the proceeds of such sale or disposition are Disposition, then such remaining proceeds of such Disposition shall be applied in the manner set forth in accordance with Section 2.72.8(c) hereof. * DENOTES CONFIDENTIAL INFORMATION THAT HAS BEEN OMITTED FROM THIS EXHIBIT AND FILED SEPARATELY, ACCOMPANIED BY A CONFIDENTIAL TREATMENT REQUEST, WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934.

Merger and Sale of Assets. No Company shall merge Merge or consolidate with any other Person, liquidate, wind-up or dissolve itself, corporation or sell, lease or lease, transfer or otherwise dispose dispose, in any single transaction or series of related transactions, of assets which shall have contributed 10% or more to Consolidated Pre-Tax Income for any of the three fiscal years then most recently ended, or assets whose aggregate fair value (as determined in good faith by the board of directors of the General Partner, as the case may be) shall exceed 10% of Consolidated Net Assets, to any Person, except that (i) any 75%-owned Subsidiary which is free from any Debt to any Person other than Inventory in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any Borrower (provided that such Borrower shall be the continuing or surviving Person) or (ii) any one or more Credit Parties, provided that other 75%-owned Subsidiaries which are free from any Debt to any Person other than the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party;Company, (cii) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to the Company or a 75%-owned Subsidiary, (i) a Borrower, or (iiiii) any Wholly-Owned Subsidiary that is may sell or otherwise dispose of all or substantially all of its assets subject to the conditions specified in paragraph 6A(4) with respect to a Domestic Subsidiary that is a Credit Party; orsale of the stock of such Subsidiary, (div) any the Company may enter into any merger in which it is the surviving entity, provided that no Default or Event of Default would exist immediately after giving effect thereto, (iv) dispose of accounts receivable in connection with the collection or compromise thereof Company may, in the ordinary course of business; (ii) , sell or otherwise dispose of Cash Equivalents for fair market value; (a) buildings and parcels of land not used in connection with the business of the Company or any Subsidiary and (iiib) dispose vehicles, (vi) any Subsidiary (other than Xxxxx'x Xxxxx Farm) may merge or consolidate with any other corporation, provided that, immediately after giving effect to such merger or consolidation, the continuing or surviving corporation of obsoletesuch merger or consolidation shall constitute a Subsidiary and no Default or Event of Default would exist, damagedand (vii) Xxxxx'x Xxxxx Farm may merge or consolidate with any other corporation, surplusprovided that, unused or worn out property (a) it is the continuing and surviving entity in the ordinary course case of business in amounts not any merger or consolidation with any Person other than the Company and (b) immediately after giving effect to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds such merger or consolidation no Default or Event of such sale or disposition are applied in the manner set forth in Section 2.7.Default would exist;

Merger and Sale of Assets. No Company shall merge merge, amalgamate or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person other than Inventory in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) a Credit Party may merge, amalgamate or consolidate with any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any Borrower other Credit Party (provided that if one of such Companies is Borrower, Borrower shall be the continuing or surviving Person); (b) a Non-Credit Party may merge, amalgamate or consolidate with another Person (ii) any one or more Credit Parties, provided that if such Person is a Credit Party, such Credit Party shall be the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit PartyPerson); (c) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected a Credit Party (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary other than Borrower) may sell, lease, transfer or otherwise dispose of any of its assets to any other Credit Party; (d) a Non-Credit Party may sell, lease, transfer or otherwise dispose of any of its assets to any other Company; (e) any Company (other than Borrower) may be liquidated or dissolved so long as (i) a Borrower, or (ii) any Wholly-Owned Subsidiary that is a Domestic Subsidiary that if such Company is a Credit Party; or (d) any Company may (i) dispose of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; , its assets are distributed to a Credit Party, and (ii) sell notice of such liquidation or dissolution is provided to Agent and the Lenders with the Compliance Certificate delivered for the fiscal quarter of Borrower in which such liquidation or dissolution occurred; (f) a Company may sell, lease, transfer or otherwise dispose of Cash Equivalents for fair market value; any assets that are obsolete or no longer useful (iiias determined by the Company in its reasonable and good faith discretion) dispose of obsolete, damaged, surplus, unused or worn out property in such Company’s business; (g) a Company may enter into sale/leaseback transactions subject to any the ordinary course of business in amounts not to exceed $250,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner restrictions set forth in Section 2.75.8(b) hereof; (h) a Company may sell, lease, transfer or otherwise dispose of any assets, in addition to any sale, transfer or disposition otherwise permitted above, in an aggregate amount not to exceed Five Million Dollars ($5,000,000) during the Commitment Period; and (i) Acquisitions may be effected in accordance with the provisions of Section 5.13 hereof.

Merger and Sale of Assets. No Company shall merge or consolidate with any other Person, liquidate, wind-up or dissolve itself, or sell, lease or transfer or otherwise dispose of any assets to any Person other than Inventory in the ordinary course of business, except that, if no Default or Event of Default shall then exist or immediately thereafter shall begin to exist: (a) any Company may sell or dispose of assets (i) for fair market value (as determined in the good faith of a Borrowers’ senior management), and (ii) in amounts not to exceed $250,000 500,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7; (b) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger) any Subsidiary may merge with (i) any Borrower (provided that such Borrower shall be the continuing or surviving Person) or (ii) any one or more Credit Parties, provided that the continuing or surviving Person shall be a Domestic Subsidiary that is a Wholly-Owned Subsidiary that is a Credit Party; (c) so long as the security interest granted to Agent, for the benefit of the Lenders, in the Collateral shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer), any Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets to (i) a Borrower, or (ii) any Wholly-Owned Subsidiary that is a Domestic Subsidiary that is a Credit Party; or (d) any Company may (i) dispose of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business; (ii) sell or otherwise dispose of Cash Equivalents for fair market value; or (iii) dispose of obsolete, damaged, surplus, unused or worn out property in the ordinary course of business in amounts not to exceed $250,000 500,000 in the aggregate for all Companies in any Fiscal Year so long as the proceeds of such sale or disposition are applied in the manner set forth in Section 2.7.