Common use of Sale of Assets, Consolidation, Merger, Dissolution, Etc Clause in Contracts

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors shall not and shall not permit any Subsidiary to, directly or indirectly, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, however, upon prior written notice to Agent: (i) a Subsidiary (other than a Borrower) may (A) merge into or with or consolidate with another Subsidiary or (B) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more other Subsidiaries; (ii) [reserved]; (iii) (w) a Subsidiary may merge into or with or consolidate with a Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or Guarantor; and (iv) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrower, or (y) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization of the type, domiciled in the state and bearing the same company name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to such surviving Borrower.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors No Loan Party shall, nor shall not and shall not it permit any Subsidiary to, directly or indirectly, (a) merge into or with or consolidate with or into any other Person or permit sell, issue, assign, lease, license, transfer, abandon, or otherwise dispose of any Capital Stock, Indebtedness, or all or substantially all of its assets (whether in one transaction or a series of transactions) to any other Person to merge into Person, or with dissolve or consolidate with it; providedliquidate, however, upon prior written notice to Agentprovided that this Section shall not prohibit: (a) so long as no Default or Event of Default exists or would result therefrom, any Subsidiary of the Company from merging with and into or consolidating with (i) a Subsidiary the Company or another Loan Party, provided that the Company or other Loan Party shall be the continuing or surviving Person, or (ii) any one or more other than a Borrower) may Subsidiaries; provided that (A) merge into when any other wholly-owned Subsidiary is merging or with or consolidate consolidating with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person and (B) when a U.S. Subsidiary is merging or consolidating with another Subsidiary, a U.S. Subsidiary shall be the continuing or surviving Person; (b) so long as no Default or Event of Default exists or would result therefrom, any Subsidiary of the Company from disposing of all or substantially all of its assets (upon voluntary liquidation, dissolution or otherwise) to (i) the Company or another Loan Party or, (ii) any one or more other Subsidiaries; provided that if the transferor in such a transaction is (A) a wholly-owned Subsidiary, then the transferee must be the Company or another wholly-owned Subsidiary or (B) dissolve a U.S. Subsidiary, then the transferee must be the Company or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more other Subsidiariesanother U.S. Subsidiary; (iic) [reserved]sales, transfers, leases or other dispositions of Inventory (including raw materials) in the ordinary course of business; (iiid) so long as no Default or Event of Default exists or would result therefrom, the sale or other disposition of assets other than ABL Priority Collateral that are worn-out, obsolete, no longer used or useful in the business of any Loan Party or otherwise surplus thereto; (e) any trade-in of Equipment in exchange for other Equipment of reasonably equivalent or greater value in the ordinary course of business; (f) transfers, sales, leases, licenses or other dispositions of assets by a Subsidiary that is not a Loan Party; (g) (wi) a Subsidiary may merge into transfers, sales, leases, licenses or with or consolidate with a Borrower or Guarantor (other dispositions by any Loan Party to any other Loan Party of assets other than Parentthe ABL Priority Collateral or (ii) transfers, sales or other dispositions by any Loan Party to any other Loan Party of assets constituting ABL Priority Collateral in the ordinary course of business and on terms in accordance with Section 10.6(a), ; (xh) a Borrower may merge into the sale and leaseback of any Equipment or with Real Property within ninety (90) days of the acquisition thereof; provided that the ninety (90) day limitation shall not apply to the sale and leaseback of any airplanes owned by any of the Loan Parties as of the Closing Date; (i) the sale or consolidate with another Borrower, other disposition of Collateral (y) a Subsidiary may dissolve or liquidate if prior not otherwise permitted pursuant to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each casethis Section 10.1), so long as (Ai) such sales or other than dispositions do not involve Collateral having an aggregate fair market value (calculated, with respect to clauses (y) or (z) aboveInventory, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity at its Value and with respect thereto and to Accounts, at their face value) in excess of $10,000,000 for all such Borrower assets disposed of in any fiscal year of Borrowers or Guarantor has as Agent may otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreementagree, (Bii) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then existtherefrom, and (Diii) if such Borrower sale or Guarantor would notother disposition is of ABL Priority Collateral, as a result both before and after giving effect to the making of such transaction and upon consummation thereof, be liable for any Indebtedness sale or other obligations disposition, Excess Availability exceeds $50,000,000; (j) the sale or other disposition of assets by a Loan Party to the extent that the proceeds of such Subsidiarysale or disposition are applied to the purchase price of replacement property used or useful in the business of such Loan Party; provided that to the extent that such assets constitute Collateral, other than Indebtedness such replacement assets constitute Collateral; (k) transfers, sales or other obligations which are dispositions of cash, Cash Equivalents and/or Investments permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or Guarantor; andSection 10.4(c); (ivl) a Guarantor transfers, sales or Borrower other dispositions of the Capital Stock of Joint Ventures or Subsidiaries that are not Loan Parties; (xm) may merge into or with or consolidate with a Borrower, or (y) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets issuance and sale by the Company of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, Capital Stock after the Closing Date; so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization of the type, domiciled in the state and bearing the same company name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occurresult therefrom; (n) the transfer, sale, lease or other disposition of the property and assets located at 000 Xxx Xxxxx, Xx. Michel des Saints, Quebec, Canada; so long as no Default or Event of Default exists or would result therefrom; (o) leases or subleases in the ordinary course of business not interfering in any material respect with the business of the Company or any of its Subsidiaries and otherwise not prohibited under this Agreement; and/or (p) licensing of Intellectual Property in the ordinary course of business that does not interfere, individually or in the aggregate, in any material respect with the conduct of the business of the Company and its Subsidiaries; provided that (i) all proceeds received in connection with any sale or other disposition of ABL Priority Collateral permitted above shall be paid to Agent for application to the Canadian Obligations or U.S. Obligations, as applicable, in such order and manner as Agent may determine and (ii) with respect to clauses (d), (C) no liensi), (l), or (m), if a Cash Dominion Event shall have occurred and be continuing, all proceeds received in connection with any sale or other disposition of assets other than those ABL Priority Collateral by any Loan Party shall be paid to Agent for application to the Canadian Obligations or U.S. Obligations, as applicable, in such order and manner as Agent may determine, except that proceeds from Senior Note Priority Collateral shall be excluded from such application to the extent that such proceeds are required to be applied to repay the Senior Notes in accordance with the Senior Notes Indenture; provided further that at least ninety percent (90%) of the consideration received for any sale or disposition permitted under pursuant to clauses (c), (d), (f) or (h) through and including (p), shall be in the terms form of cash and/or Cash Equivalents. To the extent that any Collateral is disposed of as expressly permitted by this Agreement with regard Section 10.1 or permitted pursuant to another sale consented to by the requisite Lenders required pursuant to Section 12.3 in writing to any Person other than a Loan Party, such surviving BorrowerCollateral shall be sold free and clear of the Liens created by the Loan Documents, on and, if requested by Agent, upon the assets certification of the Administrative Borrower that such other Borrower or Guarantor then existdisposition is permitted by this Agreement, Agent, shall be authorized to take, and (D) such surviving Borrower would notshall take, as a result of such transactionany actions deemed necessary in order to effect the foregoing, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under at the terms of this Agreement with regard to such surviving BorrowerBorrowers’ sole expense.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors No Borrower or Guarantor shall, nor shall not and shall not it permit any Subsidiary of its Subsidiaries to, directly or indirectly, : (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, however, upon prior written notice to Agent: (i) a Subsidiary (other than a Borrower) Borrower may (A) merge into or with or consolidate with another Subsidiary Borrower so long as both before and after giving effect thereto no Default, Event of Default or (B) dissolve Material Adverse Effect exists or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more other Subsidiarieswould occur; (ii) [reserved];a Guarantor may merge into or with or consolidate with another Guarantor; and (iii) (w) a Subsidiary Guarantor may merge into or with or consolidate with a Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or Guarantor; and (iv) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrower, or (y) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization of the type, domiciled in the state and bearing the same company corporate name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving a Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other BorrowerGuarantor, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to a Borrower; (b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock to any other Person or any of its assets to any other Person, except for (i) sales of Inventory in the ordinary course of business; (ii) subleases of real property or licenses of Intellectual Property in the ordinary course of business, as disclosed to Agent pursuant to quarterly reports of such surviving activity, (iii) exclusive of sales or dispositions contemplated by clause (vi) hereof, the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of Borrowers) so long as the value of such Equipment sold in any fiscal year is equal to or less than the value of all Equipment acquired in such year, and (iv) the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to Borrowers and Guarantors than the terms of any Capital Stock in effect on the date hereof and (D) if an Event of Default then exists, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof or at Agent’s option, to be held as cash collateral for the Obligations, (v) the issuance of Capital Stock of a Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, (vi) sales or other dispositions by any Borrower of assets in connection with the closing or sale of a retail store location of such Borrower in the ordinary course of such Borrower’s business which consist of leasehold interests in the premises of such store, the Equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store; provided, that, as to each and all such sales and closings, on the date of, and after giving effect to, any such closing or sale, (A) the number of retail store locations closed or sold by such Borrower in any fiscal year minus the number of retail stores opened by such Borrower in such fiscal year, shall not exceed the amount equal to fifteen percent (15%) of the number of retail store locations of such Borrower as of the end of the immediately preceding fiscal year, (B) Agent shall have received not less than ten (10) Business Days prior written notice of such sale or closing, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction, and (E) any and all proceeds payable or delivered to such Borrower or any Guarantor in respect of such sale or other disposition shall be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the terms of this Agreement (except to the extent such proceeds reflect payment in respect of Indebtedness secured by a properly perfected first priority security interest in the assets sold, in which case, such proceeds shall be applied to such Indebtedness secured thereby), (vii) sales or transfers of assets between Borrowers, (viii) sales or transfers of assets from a Guarantor to a Borrower so long as no Default or Event of Default would occur as a result thereof, (ix) sales or transfers of assets among Guarantors, and (x) the sale by Borrowers of the assets and properties related to the “JasmineSola” division so long as the following conditions have been satisfied: (A) Agent shall have received not less than ten (10) Business Days prior written notice of such sale, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale, the assets to be sold, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (B) as of the date of such sale and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (C) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction, and (D) Borrowers may receive and retain the net proceeds of any such sale if each of the following conditions have been satisfied: (a) no Availability Compliance Period is then in effect, and (b) Agent shall have received a pro forma Borrowing Base Certificate that reflects the effect of the transactions contemplated by such sale, and if such conditions are not satisfied, all net proceeds payable or delivered to Jasmine or the other Borrowers or any Guarantor in respect of such sale shall be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the terms of this Agreement (except to the extent such proceeds reflect payment in respect of Indebtedness secured by a properly perfected first priority security interest in the assets sold, in which case, such proceeds shall be applied to such Indebtedness secured thereby); (c) except as permitted in clause (a) above, wind up, liquidate or dissolve; or (d) agree to do any of the foregoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors shall not and shall not permit any Subsidiary to, directly or indirectly, , (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, however, upon prior written notice to Agent: (i) a Subsidiary (other than a Borrower) may (A) merge into or with or consolidate with another Subsidiary or (B) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more other Subsidiariesinto another Subsidiary; (ii) [reserved]; (iii) (w) a Subsidiary may merge into or with or consolidate with or dissolve or liquidate into a Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or Guarantor; and (iviii) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrower, or (y) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Guarantor or into a Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization of the type, domiciled in the state and bearing the same company corporate name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to such surviving Borrower. (b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or any of its assets to any other Person (or agree to do any of the foregoing unless the terms of such agreement provide that: (i) Agent’s written consent is a condition to consummation of the prohibited action, or (ii) repayment in full of the Obligations and termination of this Agreement is a condition to consummation of the prohibited action), except for: (i) sales of Inventory in the ordinary course of business, (ii) returns and exchanges of Inventory to vendors in the ordinary course of business of a Borrower or other Subsidiary of Parent on terms and conditions consistent with the current or prior practices of such Borrower or Subsidiary; (iii) the sale or other disposition of assets (other than Collateral and other than assets subject to clause (iv) of this Section below) by a Borrower or Guarantor or any Subsidiary in the ordinary course of its business that are no longer necessary or required, worn out, non-core or obsolete, in the conduct of such Borrower’s or Guarantor’s business; (iv) sales or other dispositions by any Borrower or Guarantor or any Subsidiary of assets in connection with the closing or sale of a retail store location (the closure of a store is not in and of itself the disposition of assets), warehouse, distribution center or corporate office of such Borrower, Guarantor or Subsidiary, Guarantor or Subsidiary in the ordinary course of business of such Borrower, Guarantor or Subsidiary, which sale or disposition consists of leasehold interests in the premises of such store or distribution center, the Equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store or distribution center; provided, that, as to each and all such sales and closings, (i) Agent shall have receive written notice of such sale or closing in accordance with Section 7.1(a) hereof, (ii) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and (iii) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction, (v) in addition to the dispositions permitted in subclause (iv) above, the sale or other disposition of Equipment (including worn-out, non-core or obsolete Equipment or Equipment no longer used or useful in the business of such Borrower or Guarantor) so long as the value of such Equipment sold in any fiscal year is equal to or less than the value of all Equipment acquired in such year, (vi) the grant by any Borrower or Guarantor after the date hereof of a non-exclusive license or an exclusive license to any Person for the use of commercially reasonable terms of Intellectual Property in the ordinary course of business, so long as no Event of Default has occurred and is continuing at the time of the execution and delivery of the subject license or sublicense; provided, however, (A) any such licenses or sublicenses if exclusive are for commercially reasonable periods of time and have commercially reasonable geographical limitations, (B) if any such license or sublicense is for use within the United States or in any territory or possession thereof, then, after giving effect to such license, such Borrower or Guarantor must retain sufficient rights to use its Intellectual Property as to enable such Borrower or Guarantor to continue to conduct the material aspects of its business in the ordinary course; (C) any such licenses or sublicenses are pursuant to bona fide arm’s length transactions on commercially reasonable terms to such Borrower or Guarantor, (D) any such licenses or sublicenses do not impair in any material respect the value (to Borrower, Agent or Lenders) of the Intellectual Property or the Collateral as a whole or the marketability of the Intellectual Property or the Collateral taken as a whole, and (E) any such licenses or sublicenses do not otherwise materially and adversely affect the potential realization by Agent and Lenders of the value of the Intellectual Property or the Collateral taken as a whole when exercising their remedies under the terms of this Agreement and applicable law, (vii) sales, transfers and dispositions of assets of (A) a Borrower to another Borrower or by a Guarantor or other Subsidiary of Parent to a Borrower or Guarantor or (B) by any Subsidiary that is not a Borrower or Guarantor to another Subsidiary that is not a Borrower or Guarantor, provided, that, such transfer is otherwise consummated (and the lien and security interest of Agent and Secured Parties continues in such assets) in accordance with the terms of this Agreement and the other Financing Agreements, (viii) the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower, Guarantor or Subsidiary, which notice shall specify whether such shares are to be sold pursuant to a public offering or if not a public offering, then the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, upon the occurrence and continuance of an Event of Default or during a Compliance Period, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in accordance with Section 6.4(a) or at Agent’s option, to be held as cash collateral for the Obligations; provided, that, conditions (A) through (C) shall not apply to the issuance and sale of Capital Stock of Parent, (ix) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of Parent and its Subsidiaries for the benefit of its employees, directors and consultants, provided, that, in no event shall any Borrower or Subsidiary Guarantor be required to issue, or shall Parent or any of its Subsidiaries issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, (x) the abandonment, non-renewal, failure to maintain, cancellation or sale, transfer or other disposition of Intellectual Property which is not material to the conduct of any Borrower’s or Guarantor’s business and which has no material economic value, and (xi) leases and subleases and other agreements related to Real Property in the ordinary course of business; (xii) the transactions permitted under Sections 9.9, 9.10(h), 9.12 and 9.19 hereof, (xiii) dispositions of cash and cash equivalents subject to compliance with Section 9.10(b) hereof, and (xiv) in addition to the sales and dispositions permitted in clauses (i) through (xiii) of this Section 9.7 (b), the sale or other disposition of assets with an aggregate fair market value not in excess of $1,000,000 for all such assets disposed of in any Fiscal Year of Borrowers or as Agent may otherwise agree. In connection with any disposition set forth in Section 9.7(b) hereof, Agent shall (and is hereby irrevocably authorized by Lenders to) upon the request of Administrative Borrower and at Borrowers’ expense, (i) upon the sale or other disposition of any Collateral permitted under Section 9.7(b) hereof, release such Collateral from the Lien of Agent hereunder, and (ii) in connection with the transactions described in clause (i), deliver to Administrative Borrower a UCC-3 partial release (or other appropriate instrument, as the case may be) in form and substance reasonably satisfactory to Agent, as may be necessary to evidence the release of the Lien in favor of Agent upon any Collateral to the extent such Collateral is sold, transferred or otherwise disposed of in accordance with Section 9.7(b) hereof ; provided, that, (A) Administrative Borrower certifies to Agent, Issuing Bank and Lenders in writing that such sale, disposition or other transaction is being consummated in accordance with the terms of this Agreement (and Agent, Issuing Bank and Lenders may rely conclusively upon such certificate without any further inquiry) and such release shall only be effective upon the consummation of such transaction, sale or other disposition, (B) Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability to any third Person or create any obligations or entail any consequence to Agent, Issuing Bank or Lenders other than the release of such Obligor or such Lien without recourse or warranty, and (C) such release shall not in any manner discharge, affect or impair the Obligations of any Person not released or any Lien upon (or obligations of Obligors in respect of) the Collateral retained by such Borrower or Guarantor; and (c) wind up, liquidate or dissolve, except (i) as permitted in clause (a) above or (ii) if such Person is a Subsidiary of any Borrower (other than VS Direct) with assets having an aggregate fair market value of less than or equal to $100,000.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors Borrower shall not and shall not permit any Subsidiary tonot, directly or indirectly, : (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; providedor (b) sell, howeverassign, lease, transfer, abandon or otherwise dispose of any stock or indebtedness to any other Person or any of its assets to any other Person (except for (i) the issuance by Borrower (but not any subsidiary) of its own capital stock in a transaction not otherwise prohibited under this Agreement or the Subordinated Note Agreements, (ii) sales of Inventory in the ordinary course of business and (iii) the disposition of worn-out or obsolete Equipment or Equipment no longer used in the business of Borrower upon prior written notice to Agent: (i) a Subsidiary (other than a Borrower) may (A) merge into or with or consolidate with another Subsidiary or (B) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more other Subsidiaries; (ii) [reserved]; (iii) (w) a Subsidiary may merge into or with or consolidate with a Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each caseLender, so long as (A) other than with respect if an Event of Default exists or has occurred and is continuing, any proceeds are paid to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto Lender and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default such sales do not involve Equipment having an aggregate fair market value in excess of $250,000 for all such Equipment disposed of in any fiscal year of Borrower) and (C) whether or not an Event of Default then exists or would occur has occurred and is continuing, an adjustment to the Amortized Equipment Value shall be made upon such sale in the same manner as a result thereofprovided under Section 7.4 hereof (as if such Equipment were relocated to the facilities of Borrower's subsidiary in Reynosa, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then existMexico), and no Overformula Loan shall exist after giving affect to such adjustment); or (Dc) such Borrower form or Guarantor would notacquire any subsidiaries, as a result of such transaction except in connection with investments permitted under, and upon consummation thereofcompliance with, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or GuarantorSection 9.10(c) hereof; and (iv) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrower, or (yd) dissolve wind up, liquidate or liquidate if prior dissolve; or (e) agree to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization do any of the type, domiciled in the state and bearing the same company name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to such surviving Borrowerforegoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors Borrower shall not not, and shall not permit any Subsidiary to, directly or indirectly, : (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; , except, that Borrower may merge with and into Parent, provided, howeverthat, upon prior written notice to Agent: (i) as of the effective date of the merger and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (ii) Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate of merger as filed with the appropriate Secretary of State, (iii) the surviving entity shall immediately upon the effectiveness of the merger expressly assume in writing pursuant to an agreement, in form and substance satisfactory to Agent, all of the Obligations and the Financing Agreements and execute and deliver such other agreements, documents and instruments as Agent may request in connection therewith, (iv) the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions, have a Subsidiary Adjusted Net Worth (including, without limitation, any indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the Adjusted Net Worth of Borrower immediately prior to such transaction or series of transactions and (v) the surviving entity shall not become obligated with respect to any indebtedness, nor any of its property become subject to any lien, unless Borrower could incur such indebtedness or create such lien hereunder; or (b) sell, assign, lease, transfer, abandon or otherwise dispose of any stock or indebtedness to any other Person or any of its assets to any other Person (except for (i) sales of Inventory in the ordinary course of business, (ii) the sale by Borrower of its approximately 100 xxxxx xx xxxxxxxxxxx xxxx xxxx xx Xxxxxx, Xxxxxxx, (xxx) the disposition of worn-out or obsolete Equipment or Equipment no longer used in the business of Borrower, and (iv) the sale by Borrower and its Subsidiaries of fixed assets (other than a Borrowersales of fixed assets as permitted in Sections 10.7(b)(ii) may (A) merge into or with or consolidate with another Subsidiary or (B) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more other Subsidiaries; (ii) [reserved]; and (iii) (wabove) a Subsidiary may merge into or with or consolidate with a an aggregate net book value not exceeding $750,000 in any fiscal year of Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or Guarantorits Subsidiaries; andor (ivc) a Guarantor form or Borrower acquire any Subsidiaries; or (xd) may merge into wind up, liquidate or with or consolidate with a Borrower, or dissolve; or (ye) dissolve or liquidate if prior agree to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization do any of the type, domiciled in the state and bearing the same company name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to such surviving Borrowerforegoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors Borrower shall not and shall not permit any Subsidiary tonot, directly or indirectly, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, however, upon it (except that so long as no Event of Default then exists and Lender receives thirty (30) days prior written notice to Agent: (i) so long as Borrower is the surviving entity, a Subsidiary (other than of Borrower party to a Borrower) may (A) merge into or with or consolidate with another Subsidiary or (B) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets duly executed Guaranty and Security Agreement in favor of such Subsidiary are transferred to one or more other Subsidiaries; (ii) [reserved]; (iii) (w) a Subsidiary Lender may merge into or with or consolidate with a Borrower or Guarantor Borrower, and (other than Parent), (xii) a Borrower may permit any Subsidiary party to a duly executed Guaranty and Security Agreement in favor of Lender, to merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers such Subsidiaries, or Guarantors (b) sell, assign, lease, transfer, abandon or otherwise dispose of any stock or indebtedness to any other than ParentPerson or any of its assets to any other Person (except for (i) and sales of Inventory in the ordinary course of business, (zii) a the disposition of worn-out or obsolete Equipment or Equipment no longer used in the business of Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect if an Event of Default exists or has occurred and is continuing, any proceeds are paid to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto Lender and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) such sales do not involve Equipment having an aggregate fair market value in excess of $25,000 for all such Equipment disposed of in any fiscal year of Borrower, and (iii) the sale of Borrower's equity interests in Advance Automotive Industries, Inc., an Ontario corporation, provided, however that the proceeds of such sale are used to repay Revolving Loans hereunder and provided further, however, that so long as no Default or Event of Default then exists or would occur as and Borrower has Excess Availability in an amount not less than $600,000, Borrower may retain proceeds in an amount not to exceed $840,000 ("Retained Funds") in a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard bank account subject to a Borrower or Guarantor; and (iv) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrowerfirst priority security interest of Lender, or (yc) dissolve form or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) acquire any Subsidiaries other than with respect to clause (y) above, a Borrower is NewCo or the surviving entity with respect thereto and continues to be an organization Subsidiaries in existence as of the typedate hereof, domiciled in or (d) wind up, liquidate or dissolve, or (e) agree to do any of the state and bearing the same company name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to such surviving Borrowerforegoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers Each Borrower and Guarantors Guarantor shall not not, and shall not permit any Subsidiary to, directly or indirectly, , (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, however, upon prior written notice to Agentexcept: (i) any Loan Party may merge with an into any other Loan Party, and any Domestic Subsidiary (other than a Loan Party) may merge with and into or consolidate with any other Domestic Subsidiary (other than a Borrower) may ), provided, that, each of the following conditions is satisfied as determined by Agent: (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of the intention of such Person to so merge into or with consolidate, which notice shall set forth in reasonable detail reasonably satisfactory to Agent, the persons that are merging or consolidate with another Subsidiary consolidating, which person will be the surviving entity, and the locations of the assets of the persons that are merging or consolidating, (B) dissolve Agent shall have received such other information and documentation with respect to such merger or liquidate consolidation as Agent may reasonably request, (C) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing, (D) Agent shall have received, true, correct and complete copies of all agreements, documents and instruments relating to such merger or consolidation, including, but not limited to, the certificate or certificates of merger to be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), and (E) if prior to a Borrower is involved in any merger or concurrent with such dissolution or liquidation consolidation, a Borrower shall be the assets of such Subsidiary are transferred to one or more other Subsidiaries;surviving entity, (ii) [reserved]; (iii) (w) a any Foreign Subsidiary may merge into or with or consolidate with a Borrower and into any other Foreign Subsidiary or Guarantor (any other than Parent)Person, (x) a Borrower may merge into or with or consolidate with another Borrowerprovided, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowersthat, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in Agent shall have received prompt written notice of the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets intention of such Foreign Subsidiary then existto so merge or consolidate, and (D) which notice shall set forth in reasonable detail, the Foreign Subsidiary that is merging or consolidating, the person with whom such Borrower Foreign Subsidiary is merging or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement consolidating and the other Financing Agreements with regard to a Borrower or Guarantor; and (iv) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrower, or (y) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto material agreements and continues to be an organization of the type, domiciled in the state and bearing the same company name as existed prior documents relating to such merger or consolidation, (B) a Foreign Subsidiary shall be the surviving entity of such merger or consolidation and, except in the case of a merger or consolidation of two Foreign Subsidiaries, the conditions set forth in Section 9.10(i) shall be satisfied, and (C) in no event shall any Borrower or Guarantor (1) make, or be required to make, any payment or incur any obligation or liability in connection with such merger or consolidation (other than immaterial obligations and liabilities for which such Borrower or Guarantor is liable so long as such obligations and liabilities were not incurred by such Borrower or Guarantor in connection with, or in anticipation or contemplation of, such merger or consolidation), or (2) take any other action which is otherwise prohibited hereunder; or (b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock or Indebtedness to any other Person or any of its assets to any other Person, except for (i) sales of Inventory in the ordinary course of business, (ii) the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of any Borrower or Guarantor) so long as such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of (A) in the case of Borrowers, Guarantors and Domestic Subsidiaries, $500,000 for all such Equipment disposed of in any fiscal year of Borrowers and (B) in the case of Foreign Subsidiaries (and without limiting the terms of Section 9.7(b)(vi) hereof), $5,000,000 for all such Equipment disposed of in any fiscal year of Borrowers, or in each case such greater amount as Agent may otherwise agree, (iii) the sale or other disposition of Equipment by a Borrower, Guarantor or Domestic Subsidiary to any Foreign Subsidiary, provided, that, each of the following conditions is satisfied: (A) each such sale or other disposition shall be in a bona fide arms’ length transaction, (B) such sales or other dispositions do not involve Equipment having an aggregate fair market value in excess of $1,000,000 for all such Equipment sold or disposed of in any fiscal year of Borrowers or such greater amount as Agent may otherwise agree in writing, (C) to the extent that such Equipment so sold or otherwise disposed of is Eligible Equipment, (1) Agent shall have received Net Cash Proceeds from the Foreign Subsidiary in respect of such sale or other disposition not less than the amount equal eight-five percent (85%) of the net orderly liquidation value of such Equipment set forth in the most recent written appraisal of the Equipment received by Agent, which shall be applied either, as Agent may elect, to prepay the Loans or to the payment of the Obligations in accordance with the terms of Section 6.4 hereof and (2) the Fixed Asset Availability shall be reduced by an amount equal to such Net Cash Proceeds, and (D) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default then exists shall exist or would occurhave occurred and be continuing, (iv) Permitted Domestic Dispositions, (v) Permitted Foreign Dispositions, (vi) the sale or other disposition by any Foreign Subsidiary of Equipment, Real Property and other assets no longer necessary or useful in the business of such Foreign Subsidiary as a result of the completion of the Merger, (vii) the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof, including pursuant to a Qualified Public Offering (other than as permitted under Section 9.7(b)(viii) hereof); provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the Net Cash Proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) no liens, other than those permitted under the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower and Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or adversely affect the arrangements of Borrowers and Guarantors with regard Agent and Lenders or are more restrictive or burdensome to any Borrower or Guarantor than the terms of any Capital Stock in effect on the date hereof, (D) except as Agent may otherwise agree in writing, if as of the date of such issuance and sale or after giving effect thereto, a Cash Dominion Event has occurred and is continuing, all of the Net Cash Proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in accordance with the terms of Section 6.4 hereof, (viii) the issuance of Capital Stock of any Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such surviving Borrowerstock plans or 401(k) plans which would result in a Change of Control or other Event of Default, (ix) the grant by any Borrower or Guarantor of a non-exclusive license, or an exclusive license after the date hereof to any Foreign Subsidiary, for the use of any Intellectual Property consisting of trademarks or patents owned by any Borrower or Guarantor; provided, that, as to any such license, each of the following conditions is satisfied: (A) within ten (10) Business Days after the end of each fiscal quarter, or at any time an Event of Default exists or has occurred and is continuing more frequently as Agent may request, Borrowers and Guarantors shall provide to Agent a list of the licenses, if any, entered into during the immediately preceding fiscal quarter (or such shorter period), together with such other information with respect thereto as Agent may reasonably request, (B) each such license shall be in a bona fide arms’-length transaction, (C) such license shall not include any limitations or restrictions on the use of such trademarks or patents that would adversely affect the ability of Agent to use such trademarks or patents in order to sell or otherwise realize upon any of the Inventory, (D) upon Agent’s reasonable request, Borrowers and Guarantors shall deliver to Agent true, correct and complete copies of such agreements, documents and instruments in connection with such license as Agent may reasonably specify, and (E) at the time of the grant of the license and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (c) wind up, liquidate or dissolve except that (i) any Domestic Subsidiary (other than a Borrower) may wind up, liquidate and dissolve, provided, that, each of the following conditions is satisfied, (A) the winding up, liquidation and dissolution of such Domestic Subsidiary shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and shall not conflict with or result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which any Borrower or Guarantor is a party or may be bound, (B) such winding up, liquidation or dissolution shall be done in accordance with the requirements of all applicable laws and regulations, (C) effective upon such winding up, liquidation or dissolution, all of the assets and properties of such Domestic Subsidiary (if a Loan Party) shall be duly and validly transferred and assigned to another Loan Party, free and clear of any liens, restrictions or encumbrances other than Permitted Liens (and Agent shall have received such evidence thereof as Agent may reasonably require) and Agent shall have received such deeds, assignments or other agreements as Agent may reasonably request to evidence and confirm the transfer of such assets of such other Domestic Subsidiary to such Loan Party, (D) Agent shall have received all documents and agreements that any Domestic Subsidiary has filed with any Governmental Authority or as are otherwise required to effectuate such winding up, liquidation or dissolution, (E) no Borrower or Guarantor then existshall assume any Indebtedness, and (D) such surviving Borrower would not, obligations or liabilities as a result of such transactionwinding up, be liquidation or dissolution, or otherwise become liable for in respect of any obligations or liabilities of the entity that is winding up, liquidating or dissolving, unless such Indebtedness or other obligations is otherwise expressly permitted hereunder, (F) Agent shall have received not less than ten (10) Business Days prior written notice of the intention of such Guarantor to wind up, liquidate or other Borrowerdissolve, other and (G) as of the date of such winding up, liquidation or dissolution and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing and (ii) any Foreign Subsidiary may wind up, liquidate and dissolve, provided, that, except in the case of the winding up, liquidation or dissolution of Viasystems Luxembourg S.A. R.L., (A) Agent shall have received not less than Indebtedness ten (10) Business Days prior written notice of the intention of such Foreign Subsidiary to wind up, liquidate or other obligations which are permitted under dissolve, and (B) as of the terms date of this Agreement with regard such winding up, liquidation or dissolution and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing; or (d) enter into a binding agreement to such surviving Borrowerdo any of the foregoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors No Borrower or Guarantor shall, nor shall not and shall not it permit any Subsidiary of its Subsidiaries to, directly or indirectly, : (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, however, upon prior written notice to Agent: (i) a Subsidiary (other than a Borrower) Borrower may (A) merge into or with or consolidate with another Subsidiary Borrower so long as, other than with respect to a merger of Xxxxxx New York, Inc. with and into Xxxxxx New York Outlet, Inc. in connection with certain tax planning transactions of Borrowers and Guarantors, both before and after giving effect thereto no Default, Event of Default or (B) dissolve Material Adverse Effect exists or liquidate if prior to or concurrent with such dissolution or liquidation would occur; provided, that, in each of the assets foregoing cases, the surviving Borrower entity of such Subsidiary are transferred merger or consolidation assumes and continues to one be responsible for all of the Obligations of the constituent corporations to such merger or more other Subsidiariesconsolidation; (ii) [reserved];a Guarantor may merge into or with or consolidate with another Guarantor; and (iii) (w) a Subsidiary Guarantor may merge into or with or consolidate with a Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or Guarantor; and (iv) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrower, or (y) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization of the type, domiciled in the state and bearing the same company corporate name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving a Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other BorrowerGuarantor, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to a Borrower; (b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Capital Stock to any other Person or any of its assets to any other Person, except for (i) sales of Inventory in the ordinary course of business; (ii) subleases of real property in the ordinary course of business, as disclosed to Agent pursuant to quarterly reports of such surviving activity, (iii) the abandonment or other disposition of Intellectual Property so long as (A) such Intellectual Property (1) is not material and is no longer used or useful in any material respect in the business of any Borrower or Guarantor, (2) does not appear on is or otherwise not affixed to or incorporated in any Inventory or necessary in connection with the Records and (3) does not have any material value, (B) no Event of Default shall exist or have occurred and be continuing, and (C) Borrowers furnish to Agent a list of such Intellectual Property so abandoned at the end of each fiscal year of Borrowers with the delivery of the Compliance Certificate required to be delivered immediately following such Fiscal Year-End of Borrowers; (iv) exclusive of sales or dispositions contemplated by clause (vii) hereof, the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of Borrowers) in the ordinary course of business of Borrowers and Guarantors so long as the value of such Equipment sold in any fiscal year is equal to or less than the value of all Equipment acquired in such year, and (v) the issuance and sale by any Borrower or Guarantor of Capital Stock of such Borrower or Guarantor after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower or Guarantor, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower or Guarantor from such sale, (B) such Borrower or Guarantor shall not be required to pay any cash dividends or repurchase or redeem such Capital Stock or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Capital Stock, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letter of Credit Accommodations or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers and Guarantors with Agent and Lenders or are more restrictive or burdensome to Borrowers and Guarantors than the terms of any Capital Stock in effect on the date hereof and (D) if an Event of Default then exists, all of the proceeds of the sale and issuance of such Capital Stock shall be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof or at Agent’s option, to be held as cash collateral for the Obligations, (vi) the issuance of Capital Stock of a Borrower or Guarantor consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower or Guarantor for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower or Guarantor be required to issue, or shall such Borrower or Guarantor issue, Capital Stock pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, (vii) sales or other dispositions by any Borrower of assets in connection with the closing or sale of a retail store location of such Borrower in the ordinary course of such Borrower’s business which consist of leasehold interests in the premises of such store, the Equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store; provided, that, as to each and all such sales and closings, on the date of, and after giving effect to, any such closing or sale, (A) the number of retail store locations closed or sold by such Borrower in any fiscal year minus the number of retail stores opened by such Borrower in such fiscal year, shall not exceed the amount equal to fifteen percent (15%) of the number of retail store locations of such Borrower as of the end of the immediately preceding fiscal year, (B) Agent shall have received not less than ten (10) Business Days prior written notice of such sale or closing, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction, and (E) any and all proceeds payable or delivered to such Borrower or any Guarantor in respect of such sale or other disposition shall be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the terms of this Agreement (except to the extent such proceeds reflect payment in respect of Indebtedness secured by a properly perfected first priority security interest in the assets sold, in which case, such proceeds shall be applied to such Indebtedness secured thereby), (viii) sales or transfers of assets between Borrowers, (ix) sales or transfers of assets from a Guarantor to a Borrower so long as no Default or Event of Default would occur as a result thereof, (x) sales or transfers of assets among Guarantors; (xi) the non-exclusive license of any material Intellectual Property by a Borrower or Guarantor to another Person in the ordinary course of business so long as (A) Agent and Term Loan Agent shall have received not less than five (5) Business Days’ prior written notice of the intention of to license such Intellectual Property, (B) such license is nonexclusive and on and pursuant to the reasonable requirements of such Borrower’s or Guarantor’s business (as the case may be) and upon fair market terms, (C) the terms of such license shall provide that such license may be terminated upon sixty (60) days’ prior written notice by Agent and Term Loan Agent at any time on and after a Default or Event of Default exists or has occurred and is continuing, and (D) as of the date of and after giving effect to such license, no Default or Event of Default shall exist or have occurred; (xii) the non-exclusive license of any non-material Intellectual Property by a Borrower or Guarantor to another Person in the ordinary course of business so long as (A) the terms of such license shall provide that such license may be terminated upon sixty (60) days’ prior written notice by Agent at any time on and after a Default or Event of Default exists or has occurred and is continuing, and (B) as of the date of and after giving effect to such license, no Default or Event of Default shall exist or have occurred; and (xiii) the sale by Xxxxxx to Nevada Factoring of the charge slips and credit card transaction documents giving rise to a Private Label Credit Card Receivable in accordance with the terms and conditions of Section 8.16(b) hereof; (c) except as permitted in clause (a) above, wind up, liquidate or dissolve; or (d) agree to do any of the foregoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors Borrower shall not and shall not permit any Subsidiary tonot, directly or indirectly, (aindirectly,(a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; providedit except for the Delaware Reincorporation Merger, howeveror (b) sell, upon prior written notice assign, lease, transfer, abandon or otherwise dispose of any stock to Agent: any other Person or any of its assets to any other Person (except for (i) a Subsidiary sales of Inventory in the ordinary course of business,(ii) the disposition of Equipment so long as, if an Event of Default exists or has occurred and is continuing, the proceeds are paid to Lender to the extent such Equipment, at the time of the disposition thereof, constituted Collateral, and (iii) the sale or other disposition of assets and properties of Borrower (other than a Accounts, Inventory and Equipment) having an aggregate fair market value not in excess of $2,000,000 for all such assets and properties disposed of in any fiscal year of Borrower) may (A) merge into , provided that, if an Event of Default exists or with or consolidate with another Subsidiary has occurred and is continuing, any proceeds thereof shall be promptly remitted to Lender for application to the then unpaid Obligations in such order and manner as Lender shall determine, or (Bc) form or acquire any subsidiaries, or (d) wind up, liquidate or dissolve or liquidate if prior (e) agree to or concurrent with such dissolution or liquidation do any of the assets foregoing. Notwithstanding the foregoing, and provided no Event of such Subsidiary are transferred Default exists and is continuing, Borrower shall have the right to one or more other Subsidiaries; (ii) [reserved]; (iii) (w) a Subsidiary may merge into or with or consolidate with a Borrower or Guarantor (other than Parent), (x) a Borrower may merge into form or acquire subsidiaries in connection with the acquisition of the assets or consolidate with capital stock of another BorrowerPerson permitted by Section 9.10 hereof, (y) a Subsidiary may dissolve sell and issue additional shares of its capital stock or liquidate if prior issue warrants or options with respect to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to Borrower's capital stock, (i) in one or more Borrowers or Guarantors private sales thereof, (other than Parentii) pursuant to the Securities Act of 1933, as amended (the "INITIAL PUBLIC OFFERING"), and (iii) in connection with any secondary public offering pursuant to the Securities Act of 1933, as amended, PROVIDED THAT (1) all proceeds of any Equity Offering shall be used by Borrower solely for its working capital and corporate purposes and (2) after giving effect to any proposed Equity Offering, no Change of Control shall have occurred, and (z) a Borrower may dissolve form any subsidiary, make an investment in any Person or liquidate if prior to contribute assets or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard property to a Borrower or Guarantor; and (iv) a Guarantor or Borrower (x) may merge into or joint venture in accordance with or consolidate with a Borrower, or (y) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets provisions of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization of the type, domiciled in the state and bearing the same company name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to such surviving BorrowerSection 9.10 hereof.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors Borrower shall not and shall not permit any Subsidiary tonot, directly or indirectly, : (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, howeveror (b) sell, upon prior written notice assign, lease, transfer, abandon or otherwise dispose of any of its assets to Agentany other Person, except for: (i) a Subsidiary (other than a Borrower) may (A) merge into or with or consolidate with another Subsidiary or (B) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation sales of Inventory in the assets ordinary course of such Subsidiary are transferred to one or more other Subsidiaries;business, (ii) [reserved];the disposition of worn-out or obsolete Equipment so long as 9. 7.2.2.1 if an Event of Default exists or has occurred and is continuing, any proceeds are paid to Lender and 9. 7.2.2.2 such sales do not involve Equipment having an aggregate fair market value in excess of $100,000 for all such Equipment disposed of in any fiscal year of Borrower, (iii) (w) sales or other dispositions by Borrower of assets in connection with the closing or sale of a Subsidiary may merge into retail store location of Borrower in the ordinary course of Borrower's business, which assets so disposed of consist of leasehold interests in the premises of such store, the Equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store; provided, that, as to each and all such sales, 9. 7.2.3.1 no such sale or with other disposition shall give rise, whether by reason of any action or consolidate with a inaction then or thereafter by Borrower or Guarantor Lender, or otherwise, to any "Excess Proceeds" in respect of which (in whole or in part or in combination with other transactions) an "Offer" to purchase any Senior Notes is required at any time to be made pursuant to, and as such quoted terms are defined in, the Senior Note Indenture, 9. 7.2.3.2 on the date of, and after giving effect to, any such sale, in any 7.2.3.3 Lender shall have received not less than Parent)ten (10) Business Days prior written notice of such sale, (x) a Borrower may merge into which notice shall set forth in reasonable detail satisfactory to Lender, the parties to such sale or with or consolidate with another Borrowerother disposition, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity information with respect thereto as Lender may request, 9. 7.2.3.4 as of the date of such sale or other disposition and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time would constitute an Event of Default, shall exist or have occurred, 9. 7.2.3.5 such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) sale shall be on commercially reasonable prices and terms in a bona fide arm's length transaction, and 9. 7.2.3.6 any and all net proceeds payable or delivered to Borrower in respect of such sale or other terms of this Agreementdisposition shall be paid or delivered, (B) no Default or Event of Default then exists caused to be paid or would occur as a result thereofdelivered, (C) no liens, other than those permitted under to Lender in accordance with the terms of this Agreement or either, at Lender's option, for application to the other Financing Agreement Obligations in accordance with regard the terms hereof (except to any Borrower or Guarantor, on the extent such proceeds reflect payment in respect of indebtedness secured by a properly perfected first priority security interest in the assets of sold, in which case, such Subsidiary then exist, proceeds shall be applied to such indebtedness secured thereby) or to be held by Lender as cash collateral for the Obligations on terms and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard conditions acceptable to a Borrower or GuarantorLender; andor (ivc) a Guarantor form or Borrower acquire any subsidiaries, or (xd) may merge into wind up, liquidate or with or consolidate with a Borrowerdissolve, or or (ye) dissolve or liquidate if prior agree to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization do any of the type, domiciled in the state and bearing the same company name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to such surviving Borrowerforegoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors No Borrower or Guarantor shall, nor shall not and shall not it permit any Subsidiary of its Subsidiaries to, directly or indirectly, : (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, however, upon prior written notice to Agent: (i) a Subsidiary (other than a Borrower) Borrower may (A) merge into or with or consolidate with another Subsidiary Borrower so long as, other than with respect to a merger of Xxxxxx New York, Inc. with and into Xxxxxx New York Outlet, LLC in connection with certain tax planning transactions of Borrowers and Guarantors, both before and after giving effect thereto no Default, Event of Default or (B) dissolve Material Adverse Effect exists or liquidate if prior to or concurrent with such dissolution or liquidation would occur; provided, that, in each of the assets foregoing cases, the surviving Borrower entity of such Subsidiary are transferred merger or consolidation assumes and continues to one be responsible for all of the Obligations of the constituent corporations to such merger or more other Subsidiariesconsolidation; (ii) [reserved];a Guarantor may merge into or with or consolidate with another Guarantor; and (iii) (w) a Subsidiary Guarantor may merge into or with or consolidate with a Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or Guarantor; and (iv) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrower, or (y) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization of the type, domiciled in the state and bearing the same company corporate name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving a Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other BorrowerGuarantor, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to a Borrower; (b) sell, issue, assign, lease, license, transfer, abandon or otherwise dispose of any Equity Interests to any other Person or any of its assets to any other Person, except for (i) sales of Inventory in the ordinary course of business; (ii) subleases of real property in the ordinary course of business, as disclosed to Agent pursuant to quarterly reports of such surviving activity, (iii) the abandonment or other disposition of Intellectual Property so long as (A) such Intellectual Property (1) is not material and is no longer used or useful in any material respect in the business of any Borrower, Guarantor or any of their Subsidiaries, (2) does not appear on is or otherwise not affixed to or incorporated in any Inventory or necessary in connection with the Records and (3) does not have any material value, (B) no Event of Default shall exist or have occurred and be continuing, and (C) Borrowers furnish to Agent a list of such Intellectual Property of Borrowers, Guarantors or any of their Subsidiaries so abandoned at the end of each fiscal year of Borrowers with the delivery of the Compliance Certificate required to be delivered immediately following such Fiscal Year-End of Borrowers; (iv) exclusive of sales or dispositions contemplated by clause (vii) hereof, the sale or other disposition of Equipment (including worn-out or obsolete Equipment or Equipment no longer used or useful in the business of Borrowers) in the ordinary course of business of Borrowers, Guarantors or any of their Subsidiaries so long as the value of such Equipment sold in any fiscal year is equal to or less than the value of all Equipment acquired in such year, and (v) the issuance and sale by any Borrower, Guarantor or any of their Subsidiaries of Equity Interests of such Borrower, Guarantor of Subsidiary after the date hereof; provided, that, (A) Agent shall have received not less than ten (10) Business Days’ prior written notice of such issuance and sale by such Borrower, Guarantor or Subsidiary, which notice shall specify the parties to whom such shares are to be sold, the terms of such sale, the total amount which it is anticipated will be realized from the issuance and sale of such stock and the net cash proceeds which it is anticipated will be received by such Borrower, Guarantor or Subsidiary from such sale, (B) such Borrower, Guarantor or Subsidiary shall not be required to pay any cash dividends or repurchase or redeem such Equity Interests or make any other payments in respect thereof, except as otherwise permitted in Section 9.11 hereof, (C) the terms of such Equity Interests, and the terms and conditions of the purchase and sale thereof, shall not include any terms that include any limitation on the right of any Borrower to request or receive Loans or Letters of Credit or the right of any Borrower or Guarantor to amend or modify any of the terms and conditions of this Agreement or any of the other Financing Agreements or otherwise in any way relate to or affect the arrangements of Borrowers, Guarantors or any of their Subsidiaries with Agent and Lenders or are more restrictive or burdensome to Borrowers, Guarantors and their Subsidiaries than the terms of any Equity Interests in effect on the date hereof and (D) if an Event of Default then exists, all of the proceeds of the sale and issuance of such Equity Interests shall be paid to Agent for application to the Obligations in accordance with Section 6.4(a) hereof or at Agent’s option, to be held as cash collateral for the Obligations, (vi) the issuance of Equity Interests of a Borrower, Guarantor or any of their Subsidiaries consisting of common stock pursuant to an employee stock option or grant or similar equity plan or 401(k) plans of such Borrower, Guarantor or Subsidiary for the benefit of its employees, directors and consultants, provided, that, in no event shall such Borrower, Guarantor or Subsidiary be required to issue, or shall such Borrower, Guarantor or Subsidiary issue, Equity Interests pursuant to such stock plans or 401(k) plans which would result in a Change of Control or other Event of Default, (vii) sales or other dispositions by any Borrower of assets in connection with the closing or sale of a retail store location of such Borrower in the ordinary course of such Borrower’s business which consist of leasehold interests in the premises of such store, the Equipment and fixtures located at such premises and the books and records relating exclusively and directly to the operations of such store; provided, that, as to each and all such sales and closings, on the date of, and after giving effect to, any such closing or sale, (A) the number of retail store locations closed or sold by such Borrower in any fiscal year minus the number of retail stores opened by such Borrower in such fiscal year, shall not exceed the amount equal to fifteen percent (15%) of the number of retail store locations of such Borrower as of the end of the immediately preceding fiscal year, (B) Agent shall have received not less than ten (10) Business Days prior written notice of such sale or closing, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arm’s length transaction, and (E) any and all proceeds payable or delivered to such Borrower or any Guarantor in respect of such sale or other disposition shall be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the terms of this Agreement (except to the extent such proceeds reflect payment in respect of Indebtedness secured by a properly perfected first priority security interest in the assets sold, in which case, such proceeds shall be applied to such Indebtedness secured thereby), (viii) sales or transfers of assets between Borrowers, (ix) sales or transfers of assets from a Guarantor to a Borrower so long as no Default or Event of Default would occur as a result thereof, (x) sales or transfers of assets among Guarantors or sales or transfers of a Subsidiary to a Borrower or Guarantor; (xi) the non-exclusive license of any material Intellectual Property that is included in the Borrowing Base by a Borrower, Guarantor or a Subsidiary to another Person in the ordinary course of business so long as (A) Agent shall have received not less than five (5) Business Days’ prior written notice of the intention of to license such Intellectual Property, (B) such license is nonexclusive and on and pursuant to the reasonable requirements of such Borrower’s or Guarantor’s business (as the case may be) and upon fair market terms (as determined by the Borrower in good faith), (C) the terms of such license shall not in any way interfere, detract from or impair the IP Use Rights of Agent or otherwise affect the ability of Agent and Lenders to exercise their rights and remedies with respect to the Collateral, and (D) as of the date of and after giving effect to such license, no Default or Event of Default shall exist or have occurred; and (xii) the non-exclusive license of any non-material Intellectual Property by a Borrower, Guarantor or a Subsidiary to another Person in the ordinary course of business so long as (A) the terms of such license shall not in any way interfere, detract from or impair the IP Use Rights of Agent or otherwise affect the ability of Agent and Lenders to exercise their rights and remedies with respect to the Collateral, and (B) as of the date of and after giving effect to such license, no Default or Event of Default shall exist or have occurred; (c) except as permitted in clause (a) above, wind up, liquidate or dissolve; or (d) agree to do any of the foregoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers and Guarantors shall not and shall not permit any Subsidiary toNo Borrower shall, directly or indirectly, : (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; provided, howeverexcept that one or more Borrowers or one or more subsidiaries of a Borrower may merge with and into a Borrower, upon prior written notice to Agentprovided that: (i) no Event of Default has occurred that is continuing or would occur as a Subsidiary (other than consequence thereof, and no event has occurred that is continuing or condition exists or would occur or exist as a Borrower) may (A) merge into consequence thereof, that would, with notice or with passage of time, or consolidate with another Subsidiary both, constitute an Event of Default, and, without limiting the generality of the foregoing, no Indebtedness, liens, security, interests or (B) dissolve encumbrances shall exist after giving effect to such merger that are not permitted under Sections 9.8 or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more other Subsidiaries9.9 hereof; (ii) [reserved]the surviving entity of such merger shall be an entity that is a Borrower hereunder prior to such merger; (iii) the surviving Borrower shall have a net worth, determined in accordance with GAAP, on a pro forma basis as of the date of such merger and after giving effect thereto, not less than the net worth, determined in accordance with GAAP, of such surviving Borrower immediately prior to such merger; (wiv) Lenders' Agent may, in its sole discretion (with the consent of both Lenders in their sole discretion), but shall have no obligation to, consider as Eligible Accounts or Eligible Inventory any Accounts or Inventory acquired by the surviving Borrower from a Subsidiary may merge into or with or consolidate with merged subsidiary, that is not a Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) no Default or Event of Default then exists or would occur as a result thereof, (C) no liens, other than those permitted under the terms of this Agreement or the other Financing Agreement with regard to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would notmerger, as a result of such transaction merger or thereafter acquired or arising out of the conduct of the business so acquired through such merger, but all such Accounts or Inventory shall nevertheless be and remain part of the Collateral, subject to a valid and perfected first priority perfected lien and security interest securing the Obligations in favor of Lenders' Agent for itself as agent and for the benefit of Lenders under this Agreement; (v) the surviving Borrower shall execute and deliver to Lenders' Agent such additional agreements, documents and instruments pursuant to Section 9.15 hereof and of the kind referred to in Section 4.1(j) hereof as Lenders' Agent shall reasonably request in connection with and upon the consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under merger; (vi) the terms merger shall not violate any provision of this Agreement and the other Financing Agreements with regard to a Borrower or GuarantorNote Indenture; and (ivvii) Lenders' Agent shall receive not less than thirty (30) days' prior written notice of any such proposed merger, accompanied by a Guarantor certificate signed by any one of the Chief Executive Officer, Chief Financial Officer, Executive Vice President or Borrower Senior Vice President of Terex describing the transaction in reasonable detail and demonstrating compliance through the date of the certificate, and describing the steps to be taken to comply thereafter, with all requirements of this Section 9.7(a) (x) may merge into or with or consolidate with a Borrowerincluding this proviso), or (y) dissolve or liquidate if prior to or concurrent together with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity matters with respect thereto and continues as Lenders' Agent shall reasonably require, or (b) sell, assign, lease, transfer, abandon or otherwise dispose of any stock or Indebtedness to be an organization any other Person or any of the typeits assets to any other Person, domiciled except for (i) sales of Inventory in the state and bearing ordinary course of business including sales of Inventory to subsidiaries of Borrowers to the same company name as existed prior to such merger or consolidationextent permitted under Section 9.12 hereof, (Bii) the disposition or abandonment of worn-out or obsolete Equipment or Equipment no Default longer used or Event useful in the business of Default then exists or would occursuch Borrower, (Ciii) no lienssales of assets, other than those permitted under any Collateral, consistent with past practices, (iv) sales of assets, other than any Collateral, which would not have a material adverse effect on a Borrower's ability to perform its Obligations hereunder or upon the terms value of this Agreement with regard any Collateral or the rights of Lenders' Agent or Lenders therein or thereto, (v) the sale or lease by one Borrower to such surviving Borrower, on the assets of such other its subsidiaries or to another Borrower or Guarantor then existits subsidiaries of assets, other than Collateral, for fair consideration, (vi) the issuance and sale by such Borrower of its own equity securities (subject to Section 10.1(j) hereof), and (Dvii) the issuance and sale by such surviving Borrower would notof its own debt securities, as a result of to the extent such transactionIndebtedness is permitted in Section 9.9 hereof, be liable or (c) form or acquire any subsidiaries, except in connection with transactions and for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under purposes not prohibited by the terms hereof, or (d) wind up, liquidate or dissolve, or (e) agree to do any of this Agreement with regard to such surviving Borrowerthe foregoing.

Sale of Assets, Consolidation, Merger, Dissolution, Etc. Borrowers Each Borrower and Guarantors Guarantor shall not not, directly or indirectly, and shall not permit any Subsidiary to, directly or indirectly, (a) merge into or with or consolidate with any other Person or permit any other Person to merge into or with or consolidate with it; it except, that, any Borrower or Guarantors may merge with and into or consolidate with any of other Borrower or Guarantor, provided, howeverthat, upon each of the following conditions is satisfied as determined by Lender: (i) Lender shall have received not less than five (5) days prior written notice of the intention of such Borrower or Guarantor to Agent: so merge or consolidate and such information with respect thereto as Lender may request, (ii) as of the effective date of the merger or consolidation and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (iii) Lender shall have received true, correct and complete copies of all agreements, documents and instruments relating to such merger, including, but not limited to, the certificate or certificates of merger as filed with each appropriate Secretary of State, (iv) the surviving entity shall immediately upon the effectiveness of the merger expressly confirm in writing pursuant to an agreement, in form and substance satisfactory to Lender, its continuing liability in respect of the Obligations and Financing Agreements and execute and deliver such other agreements, documents and instruments as Lender may reasonably request in connection therewith, (v) the surviving entity shall, immediately before and immediately after giving effect to such transaction or series of transactions have an Adjusted Tangible Net Worth (including, without limitation, any indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the Adjusted Tangible Net Worth of each of the entities involved in such merger immediately prior to such transaction or series of transactions, and (vi) each Guarantor shall ratify and confirm that its guarantees of the Obligations shall apply to the Obligations as assumed by such surviving entity; or (b) sell, assign, lease, transfer, abandon or otherwise dispose of any Capital Stock or indebtedness to any other Person or any of its assets to any other Person, except for (i) a Subsidiary (other than a Borrower) may (A) merge into or with or consolidate with another Subsidiary or (B) dissolve or liquidate if prior to or concurrent with such dissolution or liquidation sales of Inventory in the assets ordinary course of such Subsidiary are transferred to one or more other Subsidiaries; business, (ii) [reserved]; the remarketing of the Huntsville Bonds in accordance with Section 9.16 hereof, (iii) (w) a Subsidiary may merge into the disposition of worn-out or with obsolete Equipment or consolidate with a Equipment no longer used in the businesses of Borrower or Guarantor (other than Parent), (x) a Borrower may merge into or with or consolidate with another Borrower, (y) a Subsidiary may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Subsidiary are transferred to one or more Borrowers or Guarantors (other than Parent) and (z) a Borrower may dissolve or liquidate if prior to or concurrent with such dissolution or liquidation the assets of such Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect any proceeds are paid to clauses (y) or (z) above, a Borrower (in the case of any such event involving a Borrower) or Guarantor (other than Parent) is the surviving entity with respect thereto Lender and such Borrower or Guarantor has otherwise complied with Section 9.1(b) of this Agreement (if applicable) and all other terms of this Agreement, (B) such sales do not involve Equipment having an aggregate fair market value in excess of $500,000 for all such Equipment disposed of in any fiscal year of Borrower (provided, that, either simultaneously with or prior to such sale, Borrower may replace such Equipment with other Equipment of equal or greater utility and value prior to such Equipment becoming worn out or obsolete or no Default longer used in the business of Borrower and free from any lien, security interest or Event other encumbrance of Default then exists or would occur as a result thereofany other person in which case the sale of such Equipment shall not be included in the dollar limit provided for in this clause (B)), (Civ) no liensthe issuance and sale of Capital Stock of CSC consisting of common stock pursuant to the existing stock option plans of CSC as in effect on the date hereof and (v) the issuance and sale of Capital Stock of CSC consisting of common stock (provided, other than those permitted under that, the terms of this Agreement such issuance and sale shall not include any restrictions or the other Financing Agreement limitations with regard respect to any Borrower or Guarantor, on the assets of such Subsidiary then exist, and (D) such Borrower or Guarantor would not, as a result of such transaction and upon consummation thereof, be liable for any Indebtedness or other obligations of such Subsidiary, other than Indebtedness or other obligations which are permitted under the terms of this Agreement and the other Financing Agreements with regard to a Borrower or Guarantor; and (iv) a Guarantor or Borrower (x) may merge into or with or consolidate with a Borrower, or (yc) dissolve form or acquire any Subsidiaries; or (d) wind up, liquidate if prior or dissolve; or (e) agree to or concurrent with such dissolution or liquidation the assets of such Guarantor or Borrower are transferred to one or more other Borrowers, in each case, so long as (A) other than with respect to clause (y) above, a Borrower is the surviving entity with respect thereto and continues to be an organization do any of the type, domiciled in the state and bearing the same company name as existed prior to such merger or consolidation, (B) no Default or Event of Default then exists or would occur, (C) no liens, other than those permitted under the terms of this Agreement with regard to such surviving Borrower, on the assets of such other Borrower or Guarantor then exist, and (D) such surviving Borrower would not, as a result of such transaction, be liable for any Indebtedness or other obligations of such Guarantor or other Borrower, other than Indebtedness or other obligations which are permitted under the terms of this Agreement with regard to such surviving Borrowerforegoing.