Common use of Mergers, Consolidations or Sales Clause in Contracts

Mergers, Consolidations or Sales. Other than sales of Inventory in the ordinary course of business, no Borrower shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, license, lease, or otherwise dispose of all or any part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing; provided that notwithstanding the foregoing or any other provision of this Agreement, as long as no Default or Event of Default exists or would result therefrom and provided the Parent gives the Agent and the Lenders prior written notice: (a) a Borrower, other than the Parent, may wind-up, dissolve, or liquidate if (i) its property is transferred to the Parent or another Borrower and (ii) the Person acquiring such property complies with its obligations under Section 7.30 and Section 7.31 hereof and Section 2.3 of the Security Agreement simultaneously with such acquisition; (b) a Borrower, other than the Parent, may merge or consolidate with the Parent or another Borrower (provided the Parent is the survivor of any such merger or consolidation to which it is a party); and (c) Subject to Section 3.4, a Borrower may enter into sales or other dispositions of its property consisting of: (i) Equipment and Real Estate if (A) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $2,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) during the term of this Agreement for all of the Borrowers, collectively, (B) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $1,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) for all of the Borrowers, collectively, during any period of four consecutive Fiscal Quarters, (C) the Agent shall have received written notice of any such sale or disposition involving Equipment with an Orderly Liquidation Value and Real Estate having an appraised fair market value in excess of $250,000, and (D) the cash consideration received by the applicable Borrower at the time of any such sale or other disposition shall be not less than 50% of the total consideration received; and (ii) subject to Section 3.4, sales allowed by Section 7.19. The inclusion of proceeds in the definition of Collateral shall not be deemed to constitute the Agent’s or any Lender’s consent to any sale or other disposition of the Collateral except as expressly permitted herein.

Mergers, Consolidations or Sales. Other than sales Neither the Parent nor any of Inventory in the ordinary course of business, no Borrower its Subsidiaries shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, license, lease, or otherwise dispose of all or any part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing; provided that notwithstanding the foregoing or any other provision of this Agreement, as long as no Default or Event of Default exists or would result therefrom and provided the Parent gives the Agent and the Lenders prior written notice: (a) a Borrower, other than the Parent, may wind-up, dissolve, or liquidate if except (i) for sales of Inventory in the ordinary course of its property is transferred to the Parent or another Borrower business and (ii) if at the Person acquiring time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing: (a) sales for fair consideration of assets (other than Inventory or Real Estate) in the ordinary course of business that constitute (1) worn out or obsolete personal property of such Credit Party or any Subsidiary thereof or (2) properties of any Credit Party or any Subsidiary thereof no longer necessary for the proper conduct of their respective businesses, having a value in the case of (1) and (2) taken together, together with the value of all other such property complies with its obligations under Section 7.30 and Section 7.31 hereof and Section 2.3 of the Security Agreement simultaneously with such acquisition; Credit Parties and their respective Subsidiaries so sold in the same Fiscal Year, of not greater than $5,000,000; (b) a Borrower, sales for fair consideration of properties (other than Facilities that are distribution centers and other than Inventory held for sale outside the Parentordinary course of business) owned or leased by any Credit Party or any Subsidiary thereof; provided, may merge or consolidate that the aggregate value (based on the greater of cost and fair market value) of all properties permitted to be sold pursuant to this clause (b) shall not exceed, together with the Parent or another Borrower (provided the Parent is the survivor of any such merger or consolidation to which it is a party); and assets sold under clause (c) Subject to Section 3.4below, a Borrower may enter into sales or other dispositions of its property consisting of: (i) Equipment and Real Estate if (A) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $2,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) 20,000,000 during the term of this Agreement for Agreement; (c) sales of assets set forth in Schedule 9.9; (d) the merger of a wholly-owned Subsidiary of any Credit Party (other than any Subsidiary that is a Borrower) with such Credit Party (so long as such Credit Party is the sole survivor of such merger) or with another wholly-owned Subsidiary of such Credit Party (other than any Subsidiary that is a Borrower); and (e) the Parent may make a capital contribution of all of the Borrowerscapital stock of a Borrower to another wholly-owned Subsidiary of the Parent (and in connection therewith, collectivelythe Parent shall execute and deliver to the Administrative Agent such amendments, updated schedules, stock certificates and other documents as the Administrative Agent shall reasonably request in connection therewith); and (Bf) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $1,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) for all of the Borrowers, collectively, during any period of four consecutive Fiscal Quarters, (C) the Agent shall have received written notice of any such sale or disposition involving Equipment with an Orderly Liquidation Value and Real Estate having an appraised fair market value in excess of $250,000, and (D) the cash consideration received by the applicable Borrower at the time of any such sale or other disposition shall be not less than 50% of the total consideration received; and (ii) subject to Section 3.4, sales allowed by Section 7.19. The inclusion of proceeds in the definition of Collateral shall not be deemed to constitute the Agent’s or any Lender’s consent to any sale or other disposition of the Collateral except as expressly permitted hereinPermitted Transfers.

Mergers, Consolidations or Sales. Other than sales Neither the Borrower nor any of Inventory ------------------------------------ its Restricted Subsidiaries shall (a) windup, liquidate or dissolve or agree to do any of the foregoing, except for any winding-up, liquidation or dissolution of any Restricted Subsidiary, or any agreement to do so, in which the ordinary course assets of businesssuch Restricted Subsidiary are distributed to the Borrower or another Restricted Subsidiary, no provided, however, that the assets of any U.S. Subsidiary which is -------- ------- -72- the subject of any such wind-up, liquidation or dissolution shall only be distributed to the Borrower shall or another U.S. Subsidiary or (b) during any Enhanced Covenant Period, but subject to the Grandfathering Rules, enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, license, lease, or otherwise dispose of all or any part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing; provided that notwithstanding the foregoing or any other provision of this Agreement, as long as no Default or Event of Default exists or would result therefrom and provided the Parent gives the Agent and the Lenders prior written notice: (a) a Borrower, other than the Parent, may wind-up, dissolve, or liquidate if except (i) sales of Inventory in the ordinary course of its property is transferred to the Parent or another Borrower and business; (ii) the Person acquiring such property complies with its obligations under Section 7.30 and Section 7.31 hereof and Section 2.3 of the Security Agreement simultaneously with such acquisition; (b) a Borrower, other than the Parent, may merge or consolidate with the Parent or another Borrower (provided the Parent is the survivor of any such merger or consolidation to which it is a party); and (c) Subject to Section 3.4, a Borrower may enter into sales or other dispositions of Equipment in the ordinary course of business that is obsolete, worn-out or no longer useable by Borrower in its property consisting of: business; (iiii) Equipment and Real Estate if Permitted Affiliate Investments; (Aiv) sales by the Orderly Liquidation Value of such Equipment and the appraised Parent for fair market value of assets constituting collateral securing the Parent's obligations under the Indenture, provided that the proceeds of any such Real Estate does not exceed $2,000,000 sale -------- shall be reinvested in replacement assets to be used in the aggregate (net ongoing operation of the related Parent's and its Restricted Subsidiaries' business (it being understood by the parties that the Indenture may require that such replacement assets be pledged as replacement collateral to secure the Parent's obligations under the Indenture); (v) sales costs, if any, of such Equipment and Real Estateassets having an aggregate book value of (A) during the term of this Agreement not more than $7,500,000 for all such assets so sold in any Fiscal Year and (B) not more than $30,000,000 for all such assets so sold after the Closing Date, (vi) sales of manufacturing facilities which are made for fair market value, provided that (A) at the Borrowerstime of any such sale, collectivelyno Event of Default shall exist or would result from such sale, (B) 75% of the Orderly Liquidation Value aggregate sales price in respect of such Equipment and the appraised fair market value of such Real Estate does not exceed $1,000,000 sale shall be paid in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) for all of the Borrowers, collectively, during any period of four consecutive Fiscal Quarterscash, (C) the Agent shall have received written notice proceeds of any such sale shall be reinvested within 24 months of such sale in replacement assets to be used in the ongoing operation of the Parent's and its Restricted Subsidiaries' business, and, pending such reinvestment, the cash proceeds of such sale shall be held by the Parent in the form of cash or disposition involving Equipment with an Orderly Liquidation Value and Real Estate having an appraised fair market value in excess of $250,000cash equivalents, and (D) the cash consideration received aggregate book value of all assets so sold by the applicable Parent and its Restricted Subsidiaries, together, shall not exceed $50,000,000; (vii) mergers or consolidations between the Borrower at and any Restricted Subsidiary and between any Restricted Subsidiary and any other Restricted Subsidiary, provided that, with respect to any -------- such transaction involving the time of any such sale or other disposition Borrower, the Borrower shall be not less than 50% the continuing or surviving corporation; (viii) transfers of the total consideration received; and (ii) subject to Section 3.4, sales allowed by Section 7.19. The inclusion capital stock of proceeds in the definition of Collateral shall not be deemed to constitute the Agent’s or any Lender’s consent German Subsidiary pursuant to any Lien encumbering such capital stock, provided that -------- such Lien is permitted under Section 9.17; and (ix) transfers of Equipment ------------ and Inventory between the Borrower and its Restricted Subsidiaries, and among Restricted Subsidiaries, permitted under Section 9.14. Notwithstanding ------------ anything to the contrary in this Section 9.8 or elsewhere in this Agreement, (1) the sale or other disposition of Accounts shall not be permitted at any time hereunder, and (2) the Collateral Borrower shall not at any time consolidate or merge with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to any Person except as expressly permitted hereinunder the preceding clause (vii).

Mergers, Consolidations or Sales. Other than sales Neither the Parent nor any of Inventory in the ordinary course of business, no Borrower its Subsidiaries shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, license, lease, or otherwise dispose of all or any part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing; provided that notwithstanding the foregoing or any other provision of this Agreement, as long as no Default or Event of Default exists or would result therefrom and provided the Parent gives the Agent and the Lenders prior written notice: (a) a Borrower, other than the Parent, may wind-up, dissolve, or liquidate if except (i) for sales of Inventory and other assets in the ordinary course of its property is transferred to the Parent or another Borrower and business, (ii) the Person acquiring such property complies with its obligations under Section 7.30 and Section 7.31 hereof and Section 2.3 of the Security Agreement simultaneously with such acquisition; (b) a Borrower, other than the Parent, may merge or consolidate with the Parent or another Borrower (provided the Parent is the survivor of any such merger or consolidation to which it is a party); and (c) Subject to Section 3.4, a Borrower may enter into for sales or other dispositions of its property consisting of: Equipment that are obsolete or no longer useable by a Loan Party, including the sale of Equipment in connection with the closing of stores otherwise permitted hereunder, (iiii) Equipment and Real Estate if other sales of assets (Aother than Inventory or in connection with sale-leaseback transactions permitted hereunder) outside the Orderly Liquidation Value ordinary course of such Equipment and the appraised fair market value of such Real Estate does not exceed $2,000,000 in the business having an aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) price during the term of this Agreement for all of the Borrowers, collectively, (B) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $1,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) for all of the Borrowers, collectively, during any period of four consecutive Fiscal Quarters, (C) the Agent shall have received written notice of any such sale or disposition involving Equipment with an Orderly Liquidation Value and Real Estate having an appraised fair market value in excess of $250,0006,000,000, (iv) sales of assets permitted to be made under SECTION 9.20 (provided that the Borrowers shall apply an amount equal to 100% of the Net Cash Proceeds of any transfer or other disposition pursuant to clause (iii) or this clause (iv) to prepay, upon receipt of such Net Cash Proceeds, the Obligations in the manner set forth in SECTION 4.5), (v) leases, subleases and license agreements in the ordinary course of business and the sale by HDSC of the Real Estate it owns on the Closing Date; and (Dvi) the cash consideration received by the applicable Borrower if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (a) any such sale or other disposition shall be not less than 50% wholly owned Subsidiary of HDSC may merge into HDSC in a transaction in which HDSC is the surviving corporation so long as the net worth of the total survivor of such merger immediately after such merger is greater than the net worth of HDSC immediately prior to such merger, (b) any wholly owned Subsidiary of HDSC may merge into or consolidate with any other wholly owned Subsidiary of HDSC in a transaction in which the surviving entity is a wholly owned Subsidiary of HDSC, no person other than HDSC or a wholly owned Subsidiary of HDSC received any consideration received; and and if such merger or consolidation involves CRH, CRH is the survivor and as such (iiand immediately after giving effect thereto) subject the net worth of CRH as the survivor is greater than the net worth of CRH immediately prior to Section 3.4such merger or consolidation, sales allowed by Section 7.19. The inclusion (c) any Subsidiary of HDSC may be liquidated as long as pursuant to such liquidation all the assets or proceeds in the definition therefrom of Collateral shall not be deemed such Subsidiary are transferred to constitute the Agent’s HDSC or any Lender’s consent to any sale or other disposition wholly owned Subsidiary of the Collateral except as expressly permitted hereinHDSC.

Mergers, Consolidations or Sales. Other than The Loan Parties will not, and will not permit any of their respective Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (including, without limitation, any sale, lease, or other disposition, or issuance, of Equity Interests or securities of a Subsidiary or another Person), or enter into any sale and leaseback transactions (except as permitted under Section 5.23), except that: (a) The Borrower and its Subsidiaries may make sales of Cash Equivalents and Inventory in the ordinary course of business, no ; (b) The Borrower shall enter into any transaction and its Subsidiaries may make sales or other dispositions of merger, reorganization, or consolidation, or transfer, sell, assign, license, lease, or otherwise dispose assets (other than the Equity Interests of all or any part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoinga Loan Party); provided that notwithstanding the foregoing or any other provision of this Agreementthat, as long as (i) no Default or Event of Default exists shall have occurred and then be continuing immediately before or after giving effect to such sale or disposition, (ii) each such sale or disposition of Accounts and/or Inventory of Loan Parties results in consideration of 100% cash in an amount equal to at least the fair market value of such assets (but, to the extent such sale or disposition involves Eligible Accounts or Eligible Inventory, in no event shall the net proceeds received be less than the amount of Availability generated by such Eligible Accounts and/or Eligible Inventory under the definition of Borrowing Base) and all of such proceeds shall be applied against the outstanding balance of Revolving Loans, (iii) each such sale or disposition of other assets results in consideration at least 75% of which shall at the time received be in the form of cash (provided that in lieu of cash the Borrower may receive, as consideration for the sale of any assets, assets which the Borrower would result therefrom have been permitted to reinvest in under the terms of Section 4.02(c) of the Term Loan Agreement as in effect on the date hereof if the Borrower had received cash consideration), (iv) the aggregate sale proceeds from all assets subject to such sales shall not exceed the greater of (x) $15,000,000 and (y) 10% of consolidated total assets of the Borrower and its Subsidiaries, in each case in any fiscal year of the Borrower plus, in the case of a sale or disposition of foreign assets or a Foreign Subsidiary, $100,000,000 in the aggregate after the Effective Date and (v) net proceeds from the sale or disposition of assets (other than Accounts and Inventory of the Loan Parties) in excess of $15,000,000 are either applied as provided in Section 4.02(c) of the Parent gives Term Loan Agreement as in effect on the Agent date hereof or reinvested in assets to the extent permitted by Section 4.02(c) of the Term Loan Agreement as in effect on the date hereof; (c) Capital Expenditures by the Borrower and its Subsidiaries shall be permitted; (d) the Borrower and its Subsidiaries may sell or otherwise dispose of damaged, obsolete or worn-out assets (excluding Eligible Accounts and Eligible Inventory) that are no longer necessary for the proper conduct of their respective business for fair market value so long as the proceeds from the sale of any Accounts and Inventory of the Loan Parties are applied to repay the Revolving Loans; (e) transactions permitted by Section 5.14 shall be permitted; (f) the Borrower and its Subsidiaries may grant leases or subleases of real property and equipment to other Persons in the ordinary course of business and not materially interfering with the conduct of the business of the Borrower and its Subsidiaries taken as a whole; (g) any Foreign Subsidiary of the Borrower may be sold or transferred to, merged with and into, or be dissolved or liquidated into, or any of its assets or Equity Interests otherwise sold or transferred to (x) the Borrower or (y) any wholly-owned Subsidiary of the Borrower, so long as so long as the Borrower and its Subsidiaries shall be in compliance with the requirements of Section 5.31 and the Lenders prior written notice:Collateral Documents; (ah) a any Domestic Subsidiary of the Borrower may be merged with and into, or be dissolved or liquidated into, or any of its assets transferred to (x) the Borrower or (y) any wholly-owned Domestic Subsidiary of the Borrower, other than the Parent, may wind-up, dissolve, or liquidate if so long as (i) its property ), in the case of clause (y), such wholly-owned Domestic Subsidiary of the Borrower is transferred to the Parent or another Borrower a Guarantor and (ii) any security interests granted to the Person acquiring Administrative Agent for the benefit of the Lenders pursuant to the Loan Documents in the assets of such Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken; (i) the Loan Parties may sell or otherwise transfer assets (other than any real property complies and other than Accounts and Inventory from the Borrower to a Guarantor) between or among one another, and Non-Guarantor Subsidiaries may sell or otherwise transfer assets between or among one another or to the Borrower or a Subsidiary Guarantor; (j) each of the Borrower and its Subsidiaries may, in the ordinary course of business, license on a non-exclusive basis patents, trademarks, copyrights and know-how to third Persons, so long as each such license does not prohibit the granting of a Lien by the Borrower or such Subsidiary in the intellectual property covered by such license; (k) each of the Borrower and its Subsidiaries may liquidate any Non-Guarantor Subsidiary; (l) the Loan Parties may make sales of Inventory of the Loan Parties to their Foreign Subsidiaries in the ordinary course of business; provided that, (i) no Default or Event of Default shall have occurred and then be continuing immediately before or after giving effect to such sale or transfer, (ii) any sale shall be for at least fair market value (but, in the event any Eligible Inventory is sold, in no event shall the net proceeds received be less than the amount of Availability generated by such Eligible Inventory under the definition of Borrowing Base) and result in 100% cash consideration, the net proceeds of which are applied to repay the Revolving Loans; provided, that the Loan Parties may hold open accounts receivable for such sales (and, to the extent any such receivable is evidenced by a note in favor of the applicable Loan Party, such note shall be pledged to the Administrative Agent pursuant to the Security Agreement) in amounts equal to at least the fair market value of such Inventory sold (but, in the event any Eligible Inventory is sold, in no event less than the amount of Availability generated by such Eligible Inventory under the definition of Borrowing Base) and any repayments on such account receivable or note shall be applied to repay the Revolving Loans; provided, further, that the aggregate accounts receivables outstanding at any one time created after the Effective Date and generated from such Inventory sales shall not exceed $10,000,000 (and for the avoidance of doubt shall exclude the accounts receivable listed on Schedule 5.13(l) hereto); (m) the Loan Parties may sell or discount Accounts (other than Eligible Accounts) in the ordinary course of business, but only in connection with the collection or compromise thereof; provided that, (i) no Default or Event of Default shall have occurred and then be continuing immediately before or after giving effect to such sale or discount and (ii) any such sale or discount shall be for at least fair market value and any net cash proceeds therefrom shall be applied to repay the Revolving Loans; (n) any Foreign Subsidiary may sell or discount accounts in the ordinary course of business, but only in connection with the collection or compromise thereof; provided that, (i) no Default or Event of Default shall have occurred and then be continuing immediately before or after giving effect to such sale or discount and (ii) any such sale or discount shall be for at least fair market value; (o) to the extent the Borrower and its obligations under Subsidiaries comply with the requirements of Section 7.30 5.31 and Section 7.31 hereof the Security Agreement, the Borrower and Section 2.3 its Subsidiaries may complete any restructuring, regardless of whether accomplished by liquidation, contribution, distribution, merger, amalgamation or any other technique, whereby the ownership of Foreign Subsidiaries is changed, so long as each such Foreign Subsidiary that is a Subsidiary of the Borrower prior to such restructuring and is intended to remain in existence following such restructuring remains, directly or indirectly, a Subsidiary of the Borrower after such restructuring; and (p) in addition to the foregoing, the Borrower and/or certain Loan Parties may transfer, directly or indirectly, in one transaction or a series of transactions, Intercompany Notes owed to the Borrower or a wholly-owned Subsidiary by a wholly-owned Subsidiary, so long as the promissory notes that the Borrower or such Loan Party will obtain in connection with the transfer thereof are pledged as additional collateral security for the Obligations and promptly delivered to the Administrative Agent, together with instruments of transfer duly executed in blank, in accordance with the Intercreditor Agreement and the Security Agreement simultaneously (in which case the Administrative Agent shall be deemed to have released its lien on such notes transferred by the Borrower and/or certain Loan Parties, as applicable). For purposes of clause (iii) of the proviso to clause (b) above, the following shall be deemed to be cash in respect of any sale or disposition: (1) the amount (without duplication) of any liability (other than any Indebtedness of the Borrower or a Guarantor whether outstanding on the Effective Date or thereafter incurred which is subordinated by its terms in right of payment to the Obligations) that would be recorded on a balance sheet prepared in accordance with GAAP of the Borrower or such acquisitionSubsidiary that is expressly (x) assumed by a Person other than the Borrower or a Subsidiary, or (y) expunged by the holder of such liability, and with respect to which, in each case, the Borrower or such Subsidiary, as the case may be, is unconditionally released from further liability with respect thereto; (b2) a Borrower, other than the Parent, may merge or consolidate with the Parent or another Borrower (provided the Parent is the survivor amount of any obligations or securities received from such merger transferee that are within 180 days repaid, converted into or consolidation sold or otherwise disposed of for cash or Cash Equivalents (to which it is a partythe extent of the cash or Cash Equivalents actually so received); (3) any contingent earn-out obligation received by the Borrower or any Subsidiary in such asset sale having an aggregate potential payout, taken together with all other contingent earn-out obligations received pursuant to this clause since the Effective Date that are at the time outstanding and held by the Borrower or any Subsidiary, not to exceed $20,000,000 at that time then outstanding (after giving effect to any payment or reduction); and (c4) Subject any Designated Noncash Consideration received by the Borrower or any Subsidiary in such asset sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to Section 3.4this clause since the Effective Date that is at the time outstanding and held by the Borrower or any Subsidiary, a Borrower may enter into sales not to exceed the greater of (x) $25,000,000 or other dispositions (y) 5.5% of its property consisting of: (i) Equipment and Real Estate if (A) Consolidated Net Tangible Assets at the Orderly Liquidation Value time of the receipt of such Equipment and Designated Noncash Consideration, with the appraised fair market value of such Real Estate does not exceed $2,000,000 in the aggregate (net each item of the related sales costs, if any, of such Equipment and Real Estate) during the term of this Agreement for all of the Borrowers, collectively, (B) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $1,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) for all of the Borrowers, collectively, during any period of four consecutive Fiscal Quarters, (C) the Agent shall have received written notice of any such sale or disposition involving Equipment with an Orderly Liquidation Value and Real Estate having an appraised fair market value in excess of $250,000, and (D) the cash consideration received by the applicable Borrower Designated Noncash Consideration being measured at the time of any such sale or other disposition shall be not less than 50% of the total consideration received; and (ii) subject received and without giving effect to Section 3.4, sales allowed by Section 7.19. The inclusion of proceeds subsequent changes in the definition of Collateral shall not be deemed to constitute the Agent’s or any Lender’s consent to any sale or other disposition of the Collateral except as expressly permitted hereinvalue.

Mergers, Consolidations or Sales. Other than sales Neither such Loan Party nor any of Inventory in the ordinary course of business, no Borrower its Subsidiaries shall enter into any transaction of merger, reorganizationamalgamation, reorganization or consolidation, or transfer, sell, assign, license, lease, lease or otherwise dispose of (each, a "Transfer") all or any part of its property, or issue or otherwise sell or transfer any equity interests in such Loan Party or any of its Subsidiaries, or wind up, liquidate or dissolve, or agree to do any of the foregoing; provided that notwithstanding the foregoing or any other provision of this Agreement, as long as no Default or Event of Default exists or would result therefrom and provided the Parent gives the Agent and the Lenders prior written noticeexcept: (a) a Borrower, other than the Parent, may wind-up, dissolve, or liquidate if (i) for sales of Inventory in the ordinary course of its property is transferred to the Parent or another Borrower and business; (ii) the Person acquiring such property complies with its obligations under Section 7.30 and Section 7.31 hereof and Section 2.3 of the Security Agreement simultaneously with such acquisition; (b) a Borrower, other than the Parent, may merge or consolidate with the Parent or another Borrower (provided the Parent is the survivor of any such merger or consolidation to which it is a party); and (c) Subject to Section 3.4, a Borrower may enter into for sales or other dispositions of Equipment by one or more Loan Parties in the ordinary course of business that are obsolete or no longer useable by the applicable Loan Party in its property consisting of:business with an orderly liquidation value not to exceed $1,000,000 in the aggregate for all Loan Parties in any Fiscal Year; (iiii) Equipment and Real Estate if for issuances of equity interests in the Parent as contemplated by the Plan of Reorganization; (iv) for the Restructuring Transactions (as defined in the Plan of Reorganization) on the Effective Date; (v) for sales or other dispositions of Fixed Assets by any Non-Loan Party in the ordinary course of business that is obsolete or no longer useable by such Non-Loan Party in its business; (vi) for transfers of equity interests owned by a Wholly-Owned Non-Loan Party to another Wholly-Owned Non-Loan Party; (vii) for issuances by the Parent for cash of Permitted Parent Equity; (viii) for (A) transfers of equity interests in a Subsidiary Guarantor (other than a Canadian Guarantor) by a Loan Party (other than a Canadian Guarantor) to another Loan Party (other than a Canadian Guarantor) and (B) transfers of equity interests in a Canadian Guarantor by a Loan Party to another Loan Party, in each instance under clause (A) or (B), on terms and conditions satisfactory to the Orderly Liquidation Value Agent after consultation with the Lenders (including, without limitation, that the equity interests subject to any such transfer shall continue to be subject to the Agent's Liens on such equity interests in effect immediately prior to such transfer); (ix) for Transfers of property between Loan Parties (other than any of the Canadian Guarantors, in each instance, either as transferor or transferee); provided, that (1) any property subject to such Equipment and Transfer shall continue to be subject to the appraised fair market value Agent's Liens on such property in effect immediately prior to such Transfer, (2) neither Holding Company shall be a transferee of property under any such Transfer, other than (x) of property (not constituting Accounts, Inventory, Borrowing Base Real Estate does not exceed $2,000,000 or Equipment included in the Borrowing Base of any Borrower immediately prior to such Transfer) having an aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) value not exceeding $100,000 during the term of this Agreement for all and (y) in the case of GenTek Holding Corporation only, of cash pursuant to the ordinary course cash management system of the Borrowers, collectivelyParent and its Subsidiaries in effect immediately prior to the Effective Date and consistent with historic practice and the requirements of the U.S. Security Agreement, (B3) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $1,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) for all of the Borrowers, collectively, during any period of four consecutive Fiscal Quarters, (C) Parent delivers to the Agent shall have received written notice of any such sale or disposition involving Equipment with an Orderly Liquidation Value and Real Estate having an appraised fair market value in excess of $250,000, and (D) the cash consideration received by the applicable Borrower at the time of any such sale or other disposition shall be intended Transfer not less than 50% three (3) Business Days prior to the consummation of the total consideration received; and such Transfer (iiother than with respect to Transfers referred to in clauses (2)(x) subject and (y) above, for which no prior notice shall be required), (4) if a Borrower shall be transferring to Section 3.4a Loan Party that is not a Borrower any property consisting of Accounts, sales allowed by Section 7.19. The inclusion of proceeds in the definition of Collateral shall not be deemed to constitute the Agent’s or any Lender’s consent to any sale or other disposition of the Collateral except as expressly permitted herein.Inventory, Borrowing Base Real Estate or

Mergers, Consolidations or Sales. Other than sales Neither the Parent nor any of Inventory in the ordinary course of business, no Borrower its Subsidiaries shall enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, license, lease, or otherwise dispose of all or any part of its property, or wind up, liquidate or dissolve, or agree to do any of the foregoing; provided that notwithstanding the foregoing or any other provision of this Agreement, as long as no Default or Event of Default exists or would result therefrom and provided the Parent gives the Agent and the Lenders prior written notice: (a) a Borrower, other than the Parent, may wind-up, dissolve, or liquidate if except (i) for sales of Inventory and other assets in the ordinary course of its property is transferred to the Parent or another Borrower and business, (ii) the Person acquiring such property complies with its obligations under Section 7.30 and Section 7.31 hereof and Section 2.3 of the Security Agreement simultaneously with such acquisition; (b) a Borrower, other than the Parent, may merge or consolidate with the Parent or another Borrower (provided the Parent is the survivor of any such merger or consolidation to which it is a party); and (c) Subject to Section 3.4, a Borrower may enter into for sales or other dispositions of its property consisting of: Equipment that are obsolete or no longer useable by a Loan Party, including the sale of Equipment in connection with the closing of stores otherwise permitted hereunder, (iiii) Equipment and Real Estate if other sales of assets (Aother than Inventory or in connection with sale-leaseback transactions permitted hereunder) outside the Orderly Liquidation Value ordinary course of such Equipment and the appraised fair market value of such Real Estate does not exceed $2,000,000 in the business having an aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) price during the term of this Agreement for all of the Borrowers, collectively, (B) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $1,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) for all of the Borrowers, collectively, during any period of four consecutive Fiscal Quarters, (C) the Agent shall have received written notice of any such sale or disposition involving Equipment with an Orderly Liquidation Value and Real Estate having an appraised fair market value in excess of $250,0006,000,000, (iv) sales of assets permitted to be made under SECTION 9.20 (provided that the Borrowers shall apply an amount equal to 100% of the Net Cash Proceeds of any transfer or other disposition pursuant to clause (iii) or this clause (iv) to prepay, upon receipt of such Net Cash Proceeds, the Obligations in the manner set forth in SECTION 4.5), (v) leases, subleases and license agreements in the ordinary course of business and the sale by HDSC of the Real Estate it owns on the Closing Date; and (Dvi) the cash consideration received by the applicable Borrower if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (a) any such sale or other disposition shall be not less than 50% wholly owned Subsidiary of HDSC may merge into HDSC in a transaction in which HDSC is the surviving corporation so long as the net worth of the total survivor of such merger immediately after such merger is greater than the net worth of HDSC immediately prior to such merger, (b) any wholly owned Subsidiary of HDSC may merge into or consolidate with any other wholly owned Subsidiary of HDSC in a transaction in which the surviving entity is a wholly owned Subsidiary of HDSC, no person other than HDSC or a wholly owned Subsidiary of HDSC received any consideration received; and and if such merger or consolidation involves CRH, CRH is the survivor and as such (iiand immediately after giving effect thereto) subject to Section 3.4, sales allowed by Section 7.19. The inclusion of proceeds in the definition of Collateral shall not be deemed to constitute the Agent’s or any Lender’s consent to any sale or other disposition of the Collateral except as expressly permitted herein.net worth of

Mergers, Consolidations or Sales. Other than sales of Inventory in the ordinary course of business, no Borrower shall enter Enter into any transaction of merger, reorganization, or consolidation, or transfer, sell, assign, license, lease, or otherwise dispose of all or effect any part of its propertyAsset Transfer, or wind up, liquidate or dissolve, or agree to do any of the foregoing, except: (a) sales of Inventory in the ordinary course of its business; provided that notwithstanding (b) a lease or sublease, as lessor or sublessor, of a retail store (i) to a participant in the foregoing Riverside Markets, Bi-Lo Markets or Big M franchise program or to a wholesale customer of a Borrower; (ii) which has been replaced by another retail store operated by a Borrower; or (iii) if in such Borrower's or Subsidiary's reasonable business judgment such store is no longer necessary to its continued business operations and such lease or sublease is in its best interests; (c) a merger of any Subsidiary into a Borrower or any Subsidiary, or a merger of a Borrower that is a Subsidiary of another Borrower into such other provision Borrower, or the dissolution, windup or liquidation of this Agreementany Restricted Subsidiary or Dairy Dell, as long as Inc.; (d) with the consent of the Required Lenders, which may be given or withheld in their sole discretion, a merger of Penn Traffic into any Subsidiary, or a consolidation of Penn Traffic with any Subsidiary where Penn Traffic is not the surviving corporation, or a merger or consolidation of any Borrower other than Penn Traffic into or with any Guarantor Subsidiary; (e) if no Default Event or Event of Default exists shall have occurred and be continuing or would result therefrom and provided the Parent gives the Agent and the Lenders prior written notice: (a) occur after giving effect thereto, a Disposition of Property by a Borrower, other than the Parenta Sale and Leaseback Transaction, may wind-up, dissolve, or liquidate if provided that (i) its property the Property is transferred to sold or Disposed of for consideration not less than the Parent or another Borrower and Fair Market Value thereof, (ii) the Person acquiring such property complies with its obligations Net Cash Proceeds are paid to the Agent to the extent required under Section 7.30 4.4(a)(i) and Section 7.31 hereof and Section 2.3 (iii) the Fair Market Value of all Property so sold or Disposed of (x) from the Security Agreement simultaneously with such acquisition; Closing Date to the end of Fiscal Year 2000 does not exceed $20,000,000 or (by) a Borrower, other than the Parent, may merge or consolidate with the Parent or another Borrower in any subsequent Fiscal Year does not exceed $25,000,000; (provided the Parent is the survivor of any such merger or consolidation to which it is a partyf); and (c) Subject to Section 3.4, a Borrower may enter into sales or other dispositions of its property consisting of: (i) Equipment a sale as part of a Development Sale and Real Estate if Leaseback Transaction, provided that the Net Cash Proceeds are paid to the Agent to the extent required under Section 4.4(b), (Aii) a sale as part of a Redevelopment Sale and Leaseback Transaction, provided that the Orderly Liquidation Net Cash Proceeds are paid to the Agent to the extent of the Original Property Value, to be applied as provided in Section 4.4(a)(ii), and (iii) any Sale and Leaseback Transaction other than a Development Sale and Leaseback Transaction or a Redevelopment Sale and Leaseback Transaction, provided that the Net Cash Proceeds are paid to the Agent as provided in Section 4.4(a)(iii); (g) a sale or Disposition with or without consideration, of Property determined to be obsolete or surplus in the discretion of management exercised pursuant to normal commercial standards, so long as the Fair Market Value of all such Equipment and the appraised fair market value Property so disposed of such Real Estate in any Fiscal Year with consideration does not exceed $2,000,000 250,000 in the aggregate or (net of the related sales costs, if any, of such Equipment and Real Estateh) during the term of other Dispositions specifically permitted by any Loan Document other than this Agreement for all of the Borrowers, collectively, (B) the Orderly Liquidation Value of such Equipment and the appraised fair market value of such Real Estate does not exceed $1,000,000 in the aggregate (net of the related sales costs, if any, of such Equipment and Real Estate) for all of the Borrowers, collectively, during any period of four consecutive Fiscal Quarters, (C) the Agent shall have received written notice of any such sale or disposition involving Equipment with an Orderly Liquidation Value and Real Estate having an appraised fair market value in excess of $250,000, and (D) the cash consideration received by the applicable Borrower at the time of any such sale or other disposition shall be not less than 50% of the total consideration received; and (ii) subject to Section 3.4, sales allowed by Section 7.19. The inclusion of proceeds in the definition of Collateral shall not be deemed to constitute the Agent’s or any Lender’s consent to any sale or other disposition of the Collateral except as expressly permitted hereinAgreement.