Common use of Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business Clause in Contracts

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties shall not, and shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (ii) other than in accordance with Section 12.2.4 hereof, change the state of its organization or enter into any transaction which has the effect of changing its state of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) above; or (v) enter into any transaction for the any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 below. No Loan Party shall, nor shall it permit any Subsidiary to, form any Subsidiaries or enter into any joint ventures or partnerships with any other Person.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties Borrower shall not, and shall not permit any Subsidiary to of its Subsidiaries to, (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereof, change the state jurisdiction of its such Person’s organization or enter into any transaction which has the effect of changing its state such Person’s jurisdiction of organization; organization (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition business and sales of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not pursuant to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereofa Factoring Arrangement; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) enter into any other transaction for outside the ordinary course of such Person’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than except (A) in connection with such Borrower’s stock option plans as in effect on the voluntary dissolution date hereof or arising after the date hereof (but subject to any limitations set forth in clause (B) of this subsection); (B) such Borrower may repurchase any of its shares of stock on the open market or pay cash dividends or distributions on its shares of stock so long as (x) the aggregate amount of such purchases, dividends and distributions does not exceed $2,500,000 during any calendar year, (y) and no Event of Default exists at the time of such payment or would be caused thereby; and (C) the transactions contemplated pursuant to subsection 13(b)(v), (vi) and (vii). Borrower shall promptly notify Administrative Agent of the filing of any Excluded Subsidiary Rule 13-d filing with the Securities Exchange Commission in accordance with Section 13.15 belowrespect of any Borrowers stock. No Loan Party shallBorrower shall not, nor and shall it not permit any Subsidiary of its Subsidiaries to, form any Subsidiaries or enter into any joint ventures or partnerships with any other Person.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties shall not, and Borrower shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereof, change the state of its Borrower’s organization or enter into any transaction which has the effect of changing its Borrower’s state of organization; organization (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition business and sales of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not pursuant to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereofa Factoring Arrangement; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) enter into any other transaction for outside the ordinary course of Borrower’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than except (A) in connection with Borrower’s stock option plans as in effect on the voluntary dissolution date hereof or arising after the date hereof (but subject to any limitations set forth in clause (B) of this subsection) and (B) Borrower may repurchase any of its shares of stock on the open market or pay cash dividends or distributions on its shares of stock so long as (x) the aggregate amount of such purchases, dividends and distributions does not exceed $3,000,000 during any calendar year or $5,000,000 from the date hereof through the end of the Original Term, (y) after giving effect to any such payment, Borrower shall have Excess Availability of at least $5,000,000 and (z) as of the end of the month immediately preceding the date of such purchase EBIT, for the 12 month period ending on such date, minus the amount of such purchase, dividend or distribution, shall exceed $5,000,000 and (C) Borrower and its Subsidiaries may enter into Permitted Acquisitions so long as no Event of Default is then continuing or would be caused thereby. Borrower shall promptly notify Agent of the filing of any Excluded Subsidiary Rule 13-d filing with the Securities Exchange Commission in accordance with Section 13.15 belowrespect of Borrower’s stock. No Loan Party shall, nor Borrower shall it permit any Subsidiary to, not form any Subsidiaries or enter into any joint ventures or partnerships with any other Person.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties shall not, and Borrower shall not (i) enter into, or permit any of its Subsidiaries to enter into, any merger or consolidation; (ii) change the state of Borrower’s organization, or permit any of its Subsidiaries to change its state of organization, or enter into any transaction or permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (ii) other than in accordance with Section 12.2.4 hereof, change the state of its organization or enter into any transaction which has the effect of changing Borrower’s or any of its Subsidiary’s state of organization, unless Borrower has taken action, in a manner satisfactory to Agent in its sole discretion, to maintain the perfection of Agent’s security interest for the benefit of Lenders in the Collateral to the extent of such perfection prior to such change; (iii) sell, lease or otherwise dispose dispose, or permit any of its Subsidiaries to sell, lease or otherwise dispose, of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any the sale or of the Exited Business Assets in accordance with the Restructuring Plan and other disposition of inventory than in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase or permit any of its Subsidiaries to purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) purchase, redeem or retire, or enter into any transaction for the any to purchase, redemption redeem or retirement of retire, any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other outstanding equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 belowinterests. No Loan Party shall, nor Borrower shall it permit any Subsidiary to, not form any new Subsidiaries or enter into any new joint ventures or partnerships with any other Person. Notwithstanding this Section 13(d), (i) Borrower may merge or consolidate with any Subsidiary so long as Borrower is the surviving entity, (ii) any of Borrower’s Subsidiaries may merge or consolidate with any other Subsidiary of Borrower, and Borrower or any Subsidiary of Borrower may redeem or repurchase any outstanding equity interests of any of Borrower’s Subsidiaries and (iii) Borrower may make an investment in the capital stock of APacific Customer Services Phils., Inc., a corporation organized under the laws of the Philippines, in an amount not to exceed $25,000. Borrower will provide prompt written notice to Agent of any actions taken by Borrower or any of its Subsidiaries pursuant to the terms of the preceding sentence.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties No Credit Party shall not, and shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan pursuant to a Permitted Acquisition so long as the Credit Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (ii) other than in accordance with Section 12.2.4 hereof, change the its state of its organization or enter into any transaction which has the effect of changing its state of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger pursuant to a Permitted Acquisition or consolidation permitted in clause (i) abovea Target Acquisition; or (v) enter into any other transaction for outside the ordinary course of such Credit Party’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 belowinterest. No Loan Credit Party shallwill, nor shall it and each Credit Party will not permit any Subsidiary toother Credit Party, form to transfer any Subsidiaries or assets of a Credit Party to an Inactive Subsidiary. No Credit Party shall enter into any joint ventures or partnerships with any other PersonPerson other than pursuant to a Permitted Acquisition, and no Credit Party shall form any Subsidiary after the date hereof unless (i) such Subsidiary is organized under the laws of a State of the United States of America, (ii) such Subsidiary executes a joinder and assumption agreement as a Credit Party and becomes a party to this Agreement and Other Agreements as Agent shall determine in its Permitted Discretion, (iii) the equity interests of such Subsidiary are pledged to Agent, for its benefit and the benefit of the Lenders, (iv) Agent receives such documents and information as Agent deems necessary or desirable in its Permitted Discretion to evidence the validity and enforceability of this Agreement and the Other Agreements against such Person and the perfection of the liens and security interests in favor of Agent, for itself and for the benefit of the Lenders, on the assets of such Credit Party, and (v) such Subsidiary has been formed pursuant to a Permitted Acquisition.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties (i) Borrower shall not, and shall not permit any Subsidiary to without the prior written consent of Lender: (iA) enter into any merger or consolidation other than consolidation; provided that (Ai) any merger of any Loan Party Borrower (other than Xxxxxx Products DelawareCRDE, AHHC, Care Pros, HIP, HIP LLC, Travmed, Prime Staff and MMSO) may merge with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower Crdentia so long as Crdentia is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (ii) any Borrower (other than CRDE, AHHC, Care Pros, HIP, HIP LLC, Travmed, Prime Staff, MMSO and Crdentia) may merge with another Borrower (other than CRDE, AHHC, Care Pros, HIP, HIP LLC, Travmed, Prime Staff, MMSO and Crdentia), (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (ii) other than in accordance with Section 12.2.4 hereof, change the state of its Borrower’s organization or enter into any transaction which has the effect of changing its Borrower’s state of organization, except in connection with a merger permitted in clause (A) above; (iiiC) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale business or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents as permitted by this Agreement in the ordinary course of business, under Section 7; (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (vE) enter into any other transaction for outside the ordinary course of Borrower’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 interest, subject to clause (iii) below. No Loan Party shall, nor . (ii) Borrower shall it permit any Subsidiary to, not form any new Subsidiaries or enter into any joint ventures or partnerships with any other Person, without the prior written consent of Lender unless (A) Crdentia (or such other Borrower) pledges all of the equity interests of such new Subsidiary to Lender, and (B) such entity enters into a joinder agreement or similar agreement in which such entity becomes a party to this Agreement, jointly and severally liable for the Obligations and pledges to Lender all of its assets as Collateral hereunder. (iii) Notwithstanding the provisions of Section 13(c)(i)(A) above, Crdentia may enter into certain Permitted Acquisitions with the prior written consent of Lender in its sole discretion.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties Except as described on Schedule 13.4 hereto and as provided in Section 13.4.1, the Borrowers shall not, and shall not permit any Subsidiary other Borrower to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereof, change the state jurisdiction of its any Borrower’s organization or enter into any transaction which has the effect of changing its state any Borrower’s jurisdiction of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than the sale, lease or dispositions of assets (Aa) any sale or other disposition of inventory in the ordinary course of business, (Bb) any sale that are no longer used or other disposition useful in the conduct of obsolete, worn-out or excess assets (other than Accounts or Inventory)such Borrower’s business, (Cc) from one Borrower to another Borrower, (d) the purchase by Xxxxxxxxxxxx Parent of Oxford GP in accordance with the Oxford Purchase Agreement, the Initial Oxford Dropdown and the other transactions described in and contemplated under the Oxford Purchase Agreement or (f) the sale by WRI of investments which are cash equivalents permitted by this Agreement 99.99% of the Equity Interests in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries Absaloka in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided thatconnection with Indian Coal Tax Credit Transactions, in each case case, in accordance with the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereofterms thereof; (iv) purchase enter into any Acquisition other than (a) Permitted Investments and (b) upon at least 10 days’ notice to Administrative Agent, subject Acquisitions by one or more Borrowers (other than WCC BV) of the stockassets, stock or other equity interests interest of one or all or a material portion more other Borrowers located within the same country of corporate organization (provided, however, that any Borrower organized in Canada may merge with any Borrower organized in the assets of any Person or division of such Person other than any merger or consolidation permitted United States to the extent that the Borrower organized in clause (i) abovethe United States is the survivor); or (v) enter into any other transaction for outside the ordinary course of the Borrowers’ business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interestinterest (other than the purchase, redemption or retirement of any Borrowers stock held by officers, directors or employees or former officers directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service pursuant to any employee benefit plan or agreement or awarded to an employee to pay for the taxes payable by such employee upon such grant or award or the vesting thereof, in all cases, in an amount not to exceed $500,000 in the aggregate in any fiscal year), and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest interest, other than pursuant to any employee benefit plan or agreement. Except in connection with any transaction described on Schedule 13.4 hereto or in connection with a Permitted Acquisition (provided that the voluntary dissolution Borrowers comply with the provisions of any Excluded Subsidiary in accordance with Section 13.15 below. No Loan Party shall12.12 herein), nor the Borrowers shall it permit any Subsidiary to, not form any Subsidiaries or enter into any joint ventures or partnerships with any other PersonPerson other than another Borrower without the prior written consent of Administrative Agent. Notwithstanding the foregoing, the Borrowers may from time to time make MLP Asset Transfers, MLP Equity Transfers and Permitted GP Transfers (and form any Subsidiary for the purpose of making an MLP Equity Transfer of all or part of the outstanding and issued Equity Interest of such Subsidiary upon approval by the Lenders as to the treatment and transfer of all underlying liabilities or a representative pro rata portion of such liabilities in the case of a transfer of less than 100% of the equity in connection with a MLP Equity Transfer) associated with the entity whose equity or assets are associated with such transfer in the case of the formation and/or investment in any joint venture) (each a “Disposition”), provided at least thirty (30) days prior to such Disposition, the Borrowers shall deliver a compliance certificate to the Administrative Agent (in form and substance acceptable to the Administrative Agent) certifying to the satisfaction of each of the following conditions (with supporting calculations as required to support such certifications, which shall be acceptable to the Administrative Agent): (i) no Default or Event of Default exists or would be caused by such Disposition, (ii) the Canadian EBITDA and the US EBITDA of all of the remaining Borrowers, determined on a pro-forma basis for the Canadian Borrowers and the US Borrowers after giving effect to the contemplated Disposition, is sufficient to satisfy the Fixed Charge Coverage ratios set forth in Section 14.1 herein, for each of the testing periods for each of the trailing twelve months following such transfer, (iii) the consideration received by Borrowers in connection with any Permitted MLP Transfer (including any limited partnership units in Oxford determined based on the closing price on the applicable national trading exchange for such limited partnership units received in exchange thereof as of the date of such transfer) must be in excess of the greater of (x) five (5) times the EBITDA (determined on a basis consistent with US EBITDA or Canadian EBITDA, as applicable) of the Borrower whose assets are subject to Disposition for the most recent trailing twelve month period (provided, however, if the Borrowers enter into any joint venture associated with a Permitted MLP Transfer which includes the transfer of the equity or the assets of the underlying Borrower the subject of such Permitted MLP Transfer of less than one hundred percent (100%) of such equity or assets, EBITDA for such purposes shall be calculated on a pro rata basis equal to the percentage of the EBITDA of the Borrower whose assets or equity is subject to transfer) and (y) the book value (determined in accordance with GAAP) of all Collateral transferred as reflected on the most recent balance sheet of the Borrowers, (iv) at least fifty percent (50%) of the consideration received for such Disposition must be paid in cash, (v) all liabilities associated with such Borrower subject to such Disposition must be assumed by the transferor in connection with such Disposition, (vi) all proceeds from such Disposition constituting Collateral hereunder shall be utilized to repay all outstanding Revolving Loans (with a permanent reduction of the Revolving Loan Commitments to the extent deemed necessary by the Administrative Agent) upon receipt, with all remaining proceeds utilized to repay the Secured Term Debt, and (vii) the Borrowers have Excess Availability of at least $20,000,000 under the US Revolving Loan Commitment and $15,000,000 under the Canadian Revolving Loan Commitment, plus cash on deposit after giving effect to such transfer, provided that with respect to the inclusion of any cash balances on deposit, such cash shall be determined after giving effect to all required and/or anticipated payments on the Secured Notes and the Secured Term Loan resulting from such transfer. In addition to the foregoing, the Borrowers shall provide the Administrative Agent with copies of all documentation requested by the Administrative Agent evidencing such Disposition, which will be in form and substance acceptable to the Administrative Agent.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties No Obligor or its Subsidiaries shall not, and shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereof, change the state jurisdiction of its such Person’s organization or enter into any transaction which has the effect of changing its state such Person’s jurisdiction of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or otherwise acquire all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) enter into any transaction for the any purchase, redemption repurchase, redeem or retirement retire any Capital Stock of any shares of any class of its stock Person not a Subsidiary Obligor or any other equity interest, and any issuance of issue any shares of, or warrants or other rights to receive or purchase any shares ofCapital Stock of any Obligor or its Subsidiaries; (vi) enter into any other transaction outside the ordinary course of such Person’s business; (vii) engage in any material transaction or transactions with or transfer any material assets to the Designated Subsidiary; or (viii) acquire, form, incorporate or organize any Subsidiary or permit to exist any Subsidiary (except for the Designated Subsidiary), other than any Subsidiary which is a Subsidiary Obligor. The foregoing to the contrary notwithstanding, this subsection 13(d) shall not prohibit consummation of (A) any merger or consolidation between any Subsidiary Obligors or of any Subsidiary Obligor with and into Borrower, (B) the sale, lease or other disposition of assets of Borrower or a Subsidiary Obligor to any domestic Subsidiary Obligor or to Borrower or the purchase or other acquisitions of assets from any Subsidiary Obligor, (C) any Permitted Capital Contribution Loan, (D) the sale for cash of all or any portion of Borrower’s Series D convertible preferred stock and warrants held in WorldWater & Solar Technologies Corp., and (E) Permitted Sponsor Investments. Additionally, notwithstanding any other provision of this Agreement or any Other Agreement, Lender hereby consents to the payment by Borrower to Xxxxx Day, as counsel to Borrower, in that certain patent infringement litigation pending in the United States District Court for the Western District of Pennsylvania captioned EMCORE Corporation and JDS Uniphase Corporation v. Optium Corporation, Case No. 2:07-CV-01202 and Case No. 2:07-CV-00326, and Optium Corporation v. EMCORE Corporation and JDS Uniphase Corporation, Case No. 2:07-CV-01683, as such cases may be consolidated or captioned differently (the “Optium Litigation”), of such firm’s first-dollar contingency fee in an amount up to $950,000 from the gross proceeds, if any, (such fee, the “Contingency Fee”) awarded in a judgment or settlement agreement with respect to the Optium Litigation, and agrees to release, at the time of payment of the Contingency Fee, if at all, any class lien Lender may have on the Contingency Fee, so that such payment of its stock or any other equity interest other than the voluntary dissolution Contingency Fee when made shall be free and clear of any Excluded Subsidiary lien or security interest in accordance with Section 13.15 belowfavor of Lender or its successors or assigns. No Loan Party shall, nor Obligor shall it permit any Subsidiary to, form any Subsidiaries or enter into any joint ventures or partnerships partnership with any other PersonPerson other than Permitted Joint Venture Investments.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties shall not, and shall not permit any Subsidiary to No Borrower shall: (ia) enter into any merger or consolidation other than consolidation, provided that a Borrower may merge with another Borrower; (Ab) except with the prior written consent of Agent (which consent shall not be unreasonably be withheld so long as all actions required to have been taken to continue Agent’s first-priority perfected security interest in or Lien on any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delawareeffected Collateral); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (ii) other than in accordance with Section 12.2.4 hereof, change the state jurisdiction of its such Person’s organization or enter into any transaction which has the effect of changing its state such Person’s jurisdiction of organization; ; (iiic) sell, lease or otherwise dispose of any of its assetsassets other than: (i) sales of Inventory in the ordinary course of business; (ii) sale, including trade-in or transfer of obsolete, unnecessary and worn-out equipment in the ordinary course of business; (iii) subject to Section 2.3.2(a) hereof, sales or trade-ins of equipment having a fair market value of not greater than $50,000 in the aggregate in any disposition as part fiscal year, the Net Cash Proceeds, of any which are to be reinvested by Borrowers in similar assets for use in the business; (iv) (iii) subject to Section 2.3.2(a) hereof, sale of the 223 Patent; (v) non-exclusive licenses of Intellectual Property of Borrowers in the ordinary course of business and consistent with past practice; (vi) the sale-leaseback transactions, other than (A) any sale exchange or other disposition of inventory disposition, in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course for cash or cash equivalents constituting Permitted Investments; and (vii) so long as no Default or Event of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) above; or (v) enter into any transaction for the any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares ofDefault is then continuing, or warrants would result therefrom, the disposition, transfer or other rights abandonment of non-material Intellectual Property determined to receive or purchase be reasonable in Borrowers’ commercially reasonable business judgment. (d) make any shares of, any class of its stock or any other equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 below. No Loan Party shall, nor shall it permit any Subsidiary to, form any Subsidiaries acquisition or enter into any joint ventures or partnerships with ventures; or (e) enter into any other Persontransaction outside the ordinary course of business which results in payment by or the creation of an obligation payable by Borrowers that would exceed $50,000 following the Closing Date in the fiscal year ended May 31, 2013, and in any fiscal year thereafter.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties No Borrower shall, nor shall not, and shall not it permit any Subsidiary other Loan Party to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereof, change the state jurisdiction of its such Borrower’s organization or enter into any transaction which has the effect of changing its state such Borrower’s jurisdiction of organization; (iii) sell, lease or otherwise dispose of any a material portion of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) enter into any other transaction for outside the ordinary course of such Borrower’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 belowinterest. No Loan Party shall, nor Borrower shall it permit any Subsidiary to, form any Subsidiaries or enter into any joint ventures or partnerships with any other Person; provided, however, that the Borrower may form Subsidiaries upon approval by Administrative Agent and such Subsidiary becomes party to this Agreement as a Loan Party pursuant to documentation in form and substance acceptable to the Administrative Agent. Notwithstanding the foregoing, the following transactions are permitted, (i) sales of Inventory in the ordinary course of business, (ii) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by (x) any Loan Party with or into any other Loan Party so long as a Borrower is the survivor if a party, or (y) any wholly-owned Subsidiary into a Borrower, (iii) sales and dispositions of worn-out or obsolete assets in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year or $2,500,000 in the aggregate during the term of this Agreement and (iv) the issuance of stock or other equity interest pursuant to the terms of the convertible debentures as in effect on the date hereof identified on Schedule 13.4.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties Accel Inc. shall not, and shall not permit any Subsidiary to to, (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereofthe case of any Loan Party, change the state of its Borrower’s organization or enter into any transaction which has the effect of changing its such Person’s state of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) aboveconnection with an acquisition of VGT Operating Contracts and related Equipment from a Person; or (v) enter into any transaction for the any issue, transfer, purchase, redemption redeem or retirement of retire any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than in such Person without the voluntary dissolution prior written consent of any Excluded Subsidiary in accordance with Section 13.15 belowthe Required Lenders. No Loan Party shall, Neither Accel Inc. nor shall it permit any Subsidiary to, form any Subsidiaries or shall enter into any joint ventures or partnerships with any other PersonPerson (provided that any such Person may operate VGTs owned by third parties in the ordinary course of business). Notwithstanding the foregoing, nothing herein shall prohibit, prior to the consummation of the SPAC Transaction, (A) the issuance or transfer of equity interests in Borrower or Accel Inc. so long as: (a), (1) Xxxxxxx Xxxxxxxxxx, Xxxxxx X. Xxxxxxxxxx and Xxxxxx X. Xxxxxxxxxx, and/or (2) any trust in which all of the beneficiaries at all times consist of any one or more of such individual or the lineal descendants of such individual, collectively own and have voting control of at least 35% of the issued and outstanding voting equity interest of Accel Inc.; (b) Accel Inc. owns 100% of the issued and outstanding equity interests of Borrower; and (c) the Persons described in the foregoing clause (1) have the power, directly or indirectly, to direct the management and policies of Borrower and Accel Inc., (B) Accel Inc. and/or any Subsidiary from consummating any Permitted Acquisition, (C) the Convertible Note Investment, (D) the SPAC Transaction so long as, in the case of this clause (D), (1) any successor to Accel Inc. provides a guaranty of the Obligations and grants a lien on its Collateral to secure the Obligations, in each case pursuant to customary joinder or other documentation in a form reasonably satisfactory to the Administrative Agent and (2) Accel Inc. (including, for the avoidance of doubt, any successor to Accel Entertainment Inc.) shall own 100% of the issued and outstanding equity interests of Accel Entertainment Gaming, LLC as of, and after, the SPAC Transaction or (E) any Loan Party from transferring assets to, or acquiring assets from, any other Loan Party.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties No Credit Party shall not, and shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan pursuant to a Permitted Acquisition unless the Credit Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (ii) other than in accordance with Section 12.2.4 hereof, change the its state of its organization or enter into any transaction which has the effect of changing its state of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger pursuant to a Permitted Acquisition or consolidation permitted in clause (i) abovethe Target Acquisition; or (v) enter into any other transaction for outside the ordinary course of such Credit Party’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 belowinterest. No Loan Credit Party shallwill, nor shall it and each Credit Party will not permit any Subsidiary toother Credit Party, form to transfer any Subsidiaries or assets of a Credit Party to an Inactive Subsidiary. No Credit Party shall enter into any joint ventures or partnerships with any other PersonPerson and no Credit Party shall form any Subsidiary after the date hereof unless (a) such Subsidiary is organized under the laws of a State of the United States of America, (b) such Subsidiary executes a joinder and assumption agreement as a Credit Party and becomes a party to this Agreement and Other Agreements as Agent shall determine in its Permitted Discretion, (c) the equity interests of such Subsidiary are pledged to Agent, for its benefit and the benefit of the Lenders, (d) Agent receives such documents and information as Agent deems necessary or desirable in its Permitted Discretion to evidence the validity and enforceability of this Agreement and the Other Agreements against such Person and the perfection of the liens and security interests in favor of Agent, for itself and for the benefit of the Lenders, on the assets of such Credit Party, and (e) such Subsidiary has been formed pursuant to a Permitted Acquisition.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties Borrower shall not, and shall not permit any Subsidiary to of its Subsidiaries to, (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereof, change the state jurisdiction of its such Person’s organization or enter into any transaction which has the effect of changing its state such Person’s jurisdiction of organization; organization (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition business and sales of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not pursuant to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereofa Factoring Arrangement; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) enter into any other transaction for outside the ordinary course of such Person’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than except (A) in connection with such Borrower’s stock option plans as in effect on the voluntary dissolution date hereof or arising after the date hereof (but subject to any limitations set forth in clause (B) of this subsection); (B) such Borrower may repurchase any of its shares of stock on the open market or pay cash dividends or distributions on its shares of stock so long as (x) the aggregate amount of such purchases, dividends and distributions does not exceed $1,200,000 during any calendar year, (y) and no Event of Default exists at the time of such payment or would be caused thereby; and (C) the transactions contemplated pursuant to subsection 13(b)(v), (vi) and (vii). Borrower shall promptly notify Administrative Agent of the filing of any Excluded Subsidiary Rule 13-d filing with the Securities Exchange Commission in accordance with Section 13.15 belowrespect of any Borrowers stock. No Loan Party shallBorrower shall not, nor and shall it not permit any Subsidiary of its Subsidiaries to, form any Subsidiaries or enter into any joint ventures or partnerships with any other Person.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties shall not, and Borrower shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) except that Holdings or any merger of any Loan Party (other than Xxxxxx Products Delaware) Subsidiary which is solvent may merge with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the so long as Borrower is the surviving entity; and provided further that, no entity of such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiarymerger); (ii) other than in accordance with Section 12.2.4 hereof, change the state of its Borrower’s organization or enter into any transaction which has the effect of changing its Borrower’s state of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business; or (iv) except as otherwise permitted herein, (B) enter into any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in transaction outside the ordinary course of Borrower’s business, (D) any sale or other disposition including, without limitation, acquisition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division substantially all of such Person other than any merger or consolidation permitted in clause (i) above; or (v) enter into any transaction for the its assets and any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest interest; provided that so long as no Event of Default would occur as a result thereof, Borrower may issue shares of stock or other than the voluntary dissolution rights to receive or purchase any shares of any Excluded Subsidiary in accordance with Section 13.15 belowclass of its stock; provided further, that (x) so long as no Event of Default has occurred and is continuing or would occur as a result thereof, (y) such redemption does not violate any applicable laws, and (z) after giving effect to such redemption, Borrower has Excess Availability of at least $7,000,000.00, Borrower may redeem up to $4,500,000.00 of its Series A Preferred Stock on April 28, 2005, subject to any extensions. No Loan Party shall, nor Borrower shall it permit any Subsidiary to, not form any Subsidiaries or enter into any joint ventures or partnerships with any other PersonPerson unless such Subsidiary, joint venture or partnership executes and delivers to Agent, for the benefit of Agent and Lenders, a Continuing Unconditional Guaranty, Security Agreement, Uniform Commercial Code Financing Statement and such other documents as Agent may reasonably request granting a lien on the same assets of such Person as is described in Section 5 hereof.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties US Borrower shall not, and nor shall not US Borrower permit any Subsidiary to other Company to, (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than without providing Lender thirty (30) days prior notice (provided that US Borrower or such Company shall take all steps necessary or otherwise requested by Lender to preserve and perfect Lender’s liens in accordance with Section 12.2.4 hereofthe Collateral), change the state its jurisdiction of its organization or enter into any transaction which has the effect of changing its state jurisdiction of organization, provided that in no event shall any Company change its country of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition sales of inventory Inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (business other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this the US Borrower’s real estate located at 200 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxx in accordance with Section 30 of that certain “Net” Lease Agreement dated as of September 26, 2003, and as in effect on the ordinary course of businessdate hereof, (D) any sale or other disposition of assets by Loan Parties between US Borrower and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal YearWest Machine and Tool, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereofInc.; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) enter into any other transaction for outside the ordinary course of such Company’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 belowinterest. No Loan Party shall, nor Company shall it permit any Subsidiary to, form any Subsidiaries or enter into any joint ventures or partnerships with any other PersonPerson without the prior written consent of Lender, which such consent shall not be unreasonably withheld.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties shall not, and Borrower shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) except that Holdings or any merger of any Loan Party (other than Xxxxxx Products Delaware) Subsidiary which is solvent may merge with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the so long as Borrower is the surviving entity; and provided further that, no entity of such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiarymerger); (ii) other than in accordance with Section 12.2.4 hereof, change the state of its Borrower’s organization or enter into any transaction which has the effect of changing its Borrower’s state of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, the Collateral other than (A) any sale or other disposition of inventory in the ordinary course of business, ; or (Biv) except as otherwise permitted herein enter into any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in transaction outside the ordinary course of Borrower’s business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Yearincluding, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided thatwithout limitation, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) above; or (v) enter into any transaction for the any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest interest; provided that so long as no Event of Default would occur as a result thereof, Borrower may issue shares of stock or other than the voluntary dissolution rights to receive or purchase any shares of any Excluded Subsidiary in accordance with Section 13.15 belowclass of its stock; provided further, that (x) so long as no Event of Default has occurred and is continuing or would occur as a result thereof and (y) such redemption does not violate any applicable laws, Borrower may redeem its Series A Preferred Stock on April 30, 2005. No Loan Party shall, nor Borrower shall it permit any Subsidiary to, not form any Subsidiaries or enter into any joint ventures or partnerships with any other PersonPerson unless such Subsidiary, joint venture or partnership executes and delivers to Lender a Continuing Unconditional Guaranty, Security Agreement, Uniform Commercial Code Financing Statement and such other documents as Lender may reasonably request granting a lien on the same assets of such Person as is described in Section 5 hereof.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties (i) Borrower shall not, and shall not permit any Subsidiary to without the prior written consent of Lender: (iA) enter into any merger or consolidation other than consolidation; provided that (Ai) any merger of any Loan Party Borrower (other than Xxxxxx Products DelawareCRDE, AHHC, Care Pros, HIP, HIP LLC, Travmed, Prime Staff and MMSO) may merge with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower Crdentia so long as Crdentia is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (ii) any Borrower (other than CRDE, AHHC, Care Pros, HIP, HIP LLC, Travmed, Prime Staff, MMSO and Crdentia) may merge with another Borrower (other than CRDE, AHHC, Care Pros, HIP, HIP LLC, Travmed, Prime Staff, MMSO and Crdentia), (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (ii) other than in accordance with Section 12.2.4 hereof, change the state of its Borrower’s organization or enter into any transaction which has the effect of changing its Borrower’s state of organization, except in connection with a merger permitted in clause (A) above; (iiiC) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale business or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents as permitted by this Agreement in the ordinary course of business, under Section 7; (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (vE) enter into any other transaction for outside the ordinary course of Borrower’s business, including, without limitation, any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 interest, subject to clause (iii) below. No Loan Party shall, nor . (ii) Borrower shall it permit any Subsidiary to, not form any new Subsidiaries or enter into any joint ventures or partnerships with any other Person, without the prior written consent of Lender unless (A) Crdentia (or such other Borrower) pledges all of the equity interests of such new Subsidiary to Lender, and (B) such entity enters into a joinder agreement or similar agreement in which such entity becomes a party to this Agreement, jointly and severally liable for the Obligations and pledges to Lender all of its assets as Collateral hereunder. (iii) Notwithstanding the foregoing, Crdentia may enter into certain Permitted Acquisitions with the prior written consent of Lender in its sole discretion. A permitted acquisition (“Permitted Acquisition”) shall mean an Acquisition which satisfies each of the following conditions: (A) the Borrower shall have: (x) a coverage ratio of EBITDA to Debt Service of at least 1.5 to 1.0, (y) a ratio of Senior Debt to EBITDA of not more than 4.0 to 1.0, and (z) a ratio of Term Loan Debt to EBITDA of not more than 2.5 to 1.0; (B) Borrowers are in compliance, and shall be on the date of the consummation of such proposed Acquisition, with all financial covenants set forth in Section 14 hereof; (C) pro forma financial projections, prepared by the Borrower in good faith for the period from the date of the consummation of such proposed Acquisition to the date which is one year thereafter, shall reflect that the Borrowers shall be in compliance with all financial covenants set forth in Section 14 hereof; (D) Excess Availability of the Borrowers shall be an amount mutually agreed upon between Lender and Borrower but in no event less than $250,000 after giving effect to the proposed Acquisition; (E) the Target entity to be acquired in such Acquisition shall become a new Borrower hereunder in accordance with the provisions and requirements of Section 13(c)(ii) hereof, and shall be subject to all the terms and conditions under this Agreement; (F) any Indebtedness to be issued by any Borrower in respect of such Acquisition shall be Subordinated Debt subject to Subordination Agreements in form and substance satisfactory to Lender including, without limitation, payment blockage rights and indefinite standstill on remedies; (G) Lender shall have reviewed and found satisfactory all Acquisition Documents in respect thereof prior to Borrower entering into any such Acquisition Documents; (H) no Default or Event of Default exists as of the proposed date of the Acquisition or would result after giving effect thereto; (I) Crdentia shall deliver to Lender a certificate of an officer of Crdentia certifying compliance with the foregoing, (J) Borrower shall deliver to Lender any other due diligence reasonably requested by the Lender in connection with an Acquisition or Target, including, without limitation collateral, cash-flow, and operational audits, and background checks on Target’s management, in each case to the reasonable satisfaction to the Lender; and (K) Borrower shall establish and maintain a separate Lockbox with a Lockbox Bank for receivables from Account Debtors of CRDE in accordance with the requirements of the Term Loan Agreement and this Agreement, and Borrower shall execute with such Lockbox Bank a lockbox agreement, blocked account agreement, and such other agreements related to the lockbox arrangements, in each case in form and substance acceptable to the Lender.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties shall not, and Borrower shall not permit (a) form any Subsidiary to Subsidiaries except as permitted by Section 11.14; (ib) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (iic) other than in accordance with Section 12.2.4 hereof, change the state of its Borrower’s organization or enter into any transaction which has the effect of changing its Borrower’s state of organization; (iiid) modify its organizational documents in a manner adverse to Lender; (e) if Borrower is a limited liability company, divide into multiple limited liability companies; (f) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (ivg) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation except as permitted in clause by Section 11.14; (i) above; or (vh) enter into any joint ventures or partnerships with any other Person except as permitted by Section 11.14; or (i) enter into any other transaction for outside the ordinary course of Borrower’s business, including any purchase, redemption or retirement of any shares of any class of its stock or any other equity interest; provided, and however, Borrower may enter any issuance of such transactions in the ordinary course of business in connection with the granting of any routine and customary executive and employee compensation so long as such Transactions are funded with Equity Proceeds; provided, further, that nothing in this Agreement limits Borrower’s right and ability to issue shares ofof its common stock, or warrants or other rights to receive or purchase any securities convertible into shares of, any class of its stock common stock, whether in a private placement of its shares or any other equity interest other than in a registered issuance pursuant to a registration statement on Form S-0, X-0, X-0 or S-8 so long as such shares do not constitute Disqualified Equity Interests and so long as the voluntary dissolution proceeds of such issuances are not used in violation of any Excluded Subsidiary in accordance with Section 13.15 below. No Loan Party shall, nor shall it permit any Subsidiary to, form any Subsidiaries of the terms or enter into any joint ventures or partnerships with any other Personprovisions of this Agreement.

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties shall not, and Borrower shall not (i) enter into, or permit any of its Subsidiaries to enter into, any merger or consolidation; (ii) change the state of Borrower’s organization, or permit any of its Subsidiaries to change its state of organization, or enter into any transaction or permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiary; (ii) other than in accordance with Section 12.2.4 hereof, change the state of its organization or enter into any transaction which has the effect of changing Borrower’s or any of its Subsidiary’s state of organization, unless Borrower has taken action, in a manner satisfactory to Agent in its sole discretion, to maintain the perfection of Agent’s security interest for the benefit of Lenders in the Collateral to the extent of such perfection prior to such change; (iii) sell, lease or otherwise dispose dispose, or permit any of its Subsidiaries to sell, lease or otherwise dispose, of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any the sale or of the Exited Business Assets in accordance with the Restructuring Plan and other disposition of inventory than in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition of assets by Loan Parties and their Subsidiaries in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent of Lender and (F) the Permitted Intercompany Transfers; provided that, in each case the proceeds of such sale or other disposition are applied to the Obligations as required by Section 2.6.5 hereof; (iv) purchase or permit any of its Subsidiaries to purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) purchase, redeem or retire, or enter into any transaction for the any to purchase, redemption redeem or retirement of retire, any shares of any class of its stock or any other equity interest, and any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other outstanding equity interest other than the voluntary dissolution of any Excluded Subsidiary in accordance with Section 13.15 belowinterests. No Loan Party shall, nor Borrower shall it permit any Subsidiary to, not form any new Subsidiaries or enter into any new joint ventures or partnerships with any other Person. Notwithstanding this Section 13(d), (i) Borrower may merge or consolidate with any Subsidiary so long as Borrower is the surviving entity and (ii) any of Borrower’s Subsidiaries may merge or consolidate with any other Subsidiary of Borrower, and Borrower or any Subsidiary of Borrower may redeem or repurchase any outstanding equity interests of any of Borrower’s Subsidiaries. Borrower will provide prompt written notice to Agent of any actions taken by Borrower or any of its Subsidiaries pursuant to the terms of the preceding sentence. (j) Section 14 of the Amended and Restated Loan Agreement is hereby amended and restated in its entirety, as follows:

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties No Borrower shall not, and shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereof, change the its state of its organization or enter into any transaction which has the effect of changing its state of organization; (iii) sell, lease or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition provided that AMCON may sell and dispose of assets by Loan Parties and their Subsidiaries in an amount not to exceed with a value of less than $1,000,000 in the aggregate 250,000.00 in any Fiscal Yeartransaction, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent series of Lender and (F) the Permitted Intercompany Transfers; related transactions, provided that, in each case that the proceeds thereof, net of such sale or other reasonable out of pocket disposition expenses, are applied to the Obligations as required by Section 2.6.5 hereofLiabilities; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) enter into any other transaction for outside the any purchaseordinary course of such Borrower’s business, redemption or retirement of any shares of any class of its stock or any other equity interestincluding, and without limitation, any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than such issuances pursuant to the voluntary dissolution terms of such Borrower’s stock option plan and the 2007 Omnibus Incentive Plan. Notwithstanding anything in this Agreement to the contrary, no Borrower shall redeem, retire, purchase or otherwise acquire any shares of any Excluded Subsidiary class or series of its stock or any other equity interest (including, without limitation, any shares of AMCON’s Series A Convertible Preferred Stock or Series B Convertible Preferred Stock); provided, however, that AMCON may (i) redeem odd lot stock in accordance with Section 13.15 belowan aggregate amount not to exceed $50,000.00 in any calendar year and other stock up to $100,000.00 in the aggregate during any calendar year, (ii) purchase shares of its common stock only so long as (I) no Event of Default is in existence at the time of, or would occur after giving effect to, any such purchase, and (II) Borrowers shall have Average Excess Availability of not less than Ten Million Dollars ($10,000,000.00) for the thirty (30) day period immediately prior to such purchase and after giving effect to any such purchase and (iii) redeem shares of AMCON’s Series A and Series B Convertible Preferred Stock only so long as (I) no Event of Default is in existence at the time of, or would occur after giving effect to, any such redemption, and (II) Borrowers shall have Average Excess Availability of not less than Five Million Dollars ($5,000,000.00) for the thirty (30) day period immediately prior to such redemption and after giving effect to any such redemption. No Loan Party shall, nor Borrower shall it permit any Subsidiary to, form any Subsidiaries or enter into any joint ventures or partnerships with any other Person. For purposes herein, “Average Excess Availability” shall be determined by dividing (i) the total of each day’s Excess Availability for such thirty (30) day period by (ii) thirty (30).

Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary Course of Business. Loan Parties No Borrower shall not, and shall not permit any Subsidiary to (i) enter into any merger or consolidation other than (A) any merger of any Loan Party (other than Xxxxxx Products Delaware) with and into any other Loan Party (other than Xxxxxx Products Delaware); provided that, if such transaction involves a Borrower, the Borrower is the surviving entity; and provided further that, no such transaction shall involve an Excluded Subsidiary, and (B) any merger of any Subsidiary that is not a Loan Party with and into any other Subsidiary that is not a Loan Party; provided that, no such transaction shall involve an Excluded Subsidiaryconsolidation; (ii) other than in accordance with Section 12.2.4 hereof, change the its state of its organization or enter into any transaction which has the effect of changing its state of organization; organization (iii) sell, lease lease, transfer or otherwise dispose of any of its assets, including any disposition as part of any sale-leaseback transactions, assets other than (A) any sale or other disposition of inventory in the ordinary course of business, (B) any sale or other disposition of obsolete, worn-out or excess assets (other than Accounts or Inventory), (C) the sale of investments which are cash equivalents permitted by this Agreement in the ordinary course of business, (D) any sale or other disposition provided that AMCON may sell and dispose of assets by Loan Parties and their Subsidiaries in an amount not to exceed with a value of less than $1,000,000 in the aggregate 250,000.00 in any Fiscal Yeartransaction, (E) any sale-leaseback transaction for which any Loan Party or any Subsidiary has obtained the prior written consent series of Lender and (F) the Permitted Intercompany Transfers; related transactions, provided that, in each case that the proceeds thereof, net of such sale or other reasonable out of pocket disposition expenses, are applied to the Obligations as required by Section 2.6.5 hereofLiabilities; (iv) purchase the stock, other equity interests or all or a material portion of the assets of any Person or division of such Person other than any merger or consolidation permitted in clause (i) abovePerson; or (v) enter into any other transaction for outside the any purchaseordinary course of such Borrower’s business, redemption or retirement of any shares of any class of its stock or any other equity interestincluding, and without limitation, any issuance of any shares of, or warrants or other rights to receive or purchase any shares of, any class of its stock or any other equity interest other than such issuances pursuant to the voluntary dissolution terms of such Borrower’s stock option plan and the 2007 Omnibus Incentive Plan. Notwithstanding anything in this Agreement to the contrary, no Borrower shall redeem, retire, purchase or otherwise acquire any shares of any Excluded Subsidiary class or series of its stock or any other equity interest (including, without limitation, any shares of AMCON’s Series A Convertible Preferred Stock or Series B Convertible Preferred Stock); provided, however, that AMCON (i) may redeem odd lot stock in accordance with Section 13.15 belowan aggregate amount not to exceed $50,000.00 in any calendar year and other stock up to $100,000.00 in the aggregate during any calendar year, (ii) purchase shares of its common stock only so long as (I) no Event of Default is in existence at the time of, or would occur after giving effect to, any such purchase, and (II) Borrowers shall have Average Excess Availability of not less than Ten Million Dollars ($10,000,000.00) for the thirty (30) day period immediately prior to such purchase and after giving effect to any such purchase and (iii) redeem shares of AMCON’s Series A and Series B Convertible Preferred Stock only so long as (I) no Event of Default is in existence at the time of, or would occur after giving effect to, any such redemption, and (II) Borrowers shall have Average Excess Availability of not less than Five Million Dollars ($5,000,000.00) for the thirty (30) day period immediately prior to such redemption and after giving effect to any such redemption. No Loan Party shall, nor Borrower shall it permit any Subsidiary to, form any Subsidiaries or enter into any joint ventures or partnerships with any other Person. For purposes herein, “Average Excess Availability” shall be determined by dividing (i) the total of each day’s Excess Availability for such thirty (30) day period by (ii) thirty (30). In addition to the foregoing, Borrowers may enter into Acquisitions solely to the extent the following conditions are satisfied: (i) the business or division acquired are for use, or the Person acquired is engaged, in the businesses engaged in by a Borrower on the Closing Date; (ii) immediately before and after giving effect to such Acquisition, no Event of Default shall exist; (iii) immediately after giving effect to such Acquisition, Borrowers have a pro-forma ratio of EBITDA to Fixed Charges of at least 1.10 to 1.0; (iv) the Borrowers have Excess Availability greater than or equal to twenty percent (20%) of the Maximum Loan Limit on a pro-forma basis for the thirty day period immediately prior to the closing of such Acquisition (as if such Acquisition had already occurred) and immediately after giving effect to such Acquisition; (v) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition and such Acquisition is not considered to be hostile; (vi) reasonably prior to such Acquisition, the Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with (a) all lien search reports and lien release letters and other documents as the Agent may require to evidence the termination of Liens on the assets or business to be acquired and (b) subordination agreements with respect to all Seller notes and contingent payments; (vii) not less than ten Business Days prior to such Acquisition, the Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information requested by Agent) and operating results, the terms and conditions, including economic terms, of the proposed Acquisition, and Borrowers’ calculation of pro forma EBITDA relating thereto; and (viii) if the Acquisition is structured as a merger, the surviving entity is either a Borrower or, following the merger, a domestic wholly-owned Subsidiary which is a Borrower hereto and such Borrower becomes a party to this Agreement pursuant to an amendment or joinder agreement in form and substance acceptable to the Agent.