Common use of Merger, Consolidation, Acquisition and Sale of Assets Clause in Contracts

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) or acquire all or a substantial portion of the assets or stock of any Person (other than another Borrower) or permit any other Person (other than another Borrower) to consolidate with or merge with it; provided, however, that the Borrowers -------- shall be permitted after notice to Agent and Lenders to acquire (by merger or otherwise, and notwithstanding the limitations set forth in Section 7.6 hereof) all or substantially all of the assets or all or substantially all of the shares of capital stock of a Person, provided that no such acquisition shall be permitted hereunder unless (i) at the time of and after giving effect to such acquisition, no Event of Default or Default shall have occurred and be continuing and Undrawn Availability is not less than $5,000,000 after giving effect to the assumption of debt and payments permitted in Subsection (ii) below, (ii) the aggregate purchase price of all such acquisitions, inclusive of assumed debt and obligations plus amounts expended pursuant to Section 7.12(b) hereof shall not exceed $5,000,000 during any fiscal year, (iii) Agent shall have a perfected first priority security interest in the Collateral of the acquired entity; (iv) the potential acquisition target's board of directors has consented to the sale and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is in the same line of business as Borrowers; (vi) the potential acquisition target is located in North America; and (vii) such acquisition shall be effected through Borrowers and the Person acquired shall be merged with or into a Borrower at the time of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable to Agent in its sole discretion within thirty (30) days of the acquisition; and (viii) no assets of the potential acquisition target's shall be included in the Borrowing Base until the potential acquisition target has joined or become a party hereto and the assets are acceptable to Agent in its sole discretion; provided, that at no time shall the amount expended under this Section 7.1 when taken together with the investments permitted under Section 7.4 (a), (b), (c), (d) and (e), the loans or other extensions of credit permitted under

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into Consummate any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) or acquire all or a substantial portion of the assets or stock Equity Interests of any Person (other than another Borrower) or permit any other Person (other than another Borrower) to consolidate with or merge with it; providedexcept, howeverthat, that the Borrowers -------- shall be permitted after notice to Agent and Lenders to acquire (by merger or otherwise, and notwithstanding the limitations set forth in Section 7.6 hereof) all or substantially all of the assets or all or substantially all of the shares of capital stock of a Person, provided that no such acquisition shall be permitted hereunder unless (i) at the time of and after giving effect to such acquisition, a Loan Party may merge or consolidate into another Loan Party so long as (A) no Event of Default or Default shall have occurred and be continuing and Undrawn Availability continuing, (B) Administrative Borrower shall give Agent at least ten (10) Business Days prior notice thereof, (C) if a Borrower is a party to such merger or consolidation a Borrower shall be the surviving entity; provided, that, any assets of the Person so acquired from any Person that was not less than $5,000,000 after giving effect a Borrower prior thereto shall only be eligible for inclusion into the Borrowing Base to the assumption extent that Agent has completed an appraisal, collateral audit and/or field examination (as the case may be) with respect thereto and the criteria for eligibility set forth herein (or such other or additional criteria as Agent may, at its option, establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may establish in connection with the assets of debt the Person so acquired) are satisfied with respect thereto in a manner acceptable to Agent, (D) no Loan Party shall merge or consolidate with a Loan Party that exists under the laws of a country different than the country in which such Loan Party exists and payments permitted in Subsection (E) prior to such merger or consolidation Loan Parties have taken (or caused to be taken) all steps required by Agent with respect thereto (including without limitation all steps required by Agent to maintain Agent’s Lien on the Collateral granted by such Loan Parties, as well as the priority and effectiveness of such Lien); and (ii) belowa Subsidiary of the Borrowers that is not a Loan Party may merge or consolidate into another Subsidiary of the Borrowers that is not a Loan Party so long as (A) no Event of Default shall have occurred and be continuing, and (B) Administrative Borrower shall give Agent at least ten (10) Business Days prior notice thereof. (b) Acquire all or a substantial portion of the assets or Equity Interests of any Person except for investments permitted by Section 7.4. (c) Directly or indirectly, sell, assign, lease, transfer, abandon or otherwise dispose of any of its assets or properties (including, without limitation, the Collateral) to any other Person (each, a “Disposition”), except for: (i) the sale of Inventory in the ordinary course of business (ii) (A) the sale, lease, transfer or Disposition of used, worn-out or obsolete Well Services Equipment and Well Services Equipment no longer used or useful in the conduct of business of Loan Parties or any of their Subsidiaries having a fair market value not to exceed $10,000,000 in the aggregate purchase price of all such acquisitions, inclusive of assumed debt and obligations plus amounts expended pursuant to Section 7.12(b) hereof shall not exceed $5,000,000 during in any fiscal year, and (iiiB) Agent shall have a perfected first priority security interest the sale, lease, transfer or Disposition of machinery and equipment other than Well Services Equipment and machinery and equipment other than Well Services Equipment no longer used or useful in the Collateral conduct of the acquired entity; (iv) the potential acquisition target's board business of directors has consented Loan Parties or any of their Subsidiaries having a fair market value not to the sale and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is exceed $10,000,000 in the same line of business as Borrowers; (vi) the potential acquisition target is located aggregate in North America; and (vii) such acquisition shall be effected through Borrowers and the Person acquired shall be merged with or into a Borrower at the time of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable to Agent in its sole discretion within thirty (30) days of the acquisition; and (viii) no assets of the potential acquisition target's shall be included in the Borrowing Base until the potential acquisition target has joined or become a party hereto and the assets are acceptable to Agent in its sole discretion; provided, that at no time shall the amount expended under this Section 7.1 when taken together with the investments permitted under Section 7.4 (a), (b), (c), (d) and (e), the loans or other extensions of credit permitted underany fiscal year;

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) or acquire all or a substantial portion of the assets or stock of any Person (other than another Borrower) or permit any other Person (other than another Borrower) to consolidate with or merge with it; provided, howeverexcept that (i) any Borrower may merge with a wholly-owned Subsidiary or another Borrower in a transaction in which a Borrower (or the Parent, that if one of the Borrowers -------- shall be permitted after notice to Agent and Lenders to acquire (by merger or otherwisemerging parties is a Subsidiary) is the surviving corporation, and notwithstanding the limitations set forth in Section 7.6 hereof(ii) any Borrower may acquire all or substantially all a substantial portion of the assets, stock or other ownership interest of any Person if (1) the Person being acquired is engaged in, or the assets being acquired are used in, the same business as is permitted under Section 5.22 or all or substantially all of the shares of capital stock of a Personanother ------------ business reasonably related thereto, provided that no such acquisition shall be permitted hereunder unless (i2) at the time of and after giving effect to such acquisition, no Default or Event of Default or Default would exist, (3) immediately prior to the consummation of such acquisition Borrowers shall have occurred and be continuing and Undrawn Availability is not less than of at least $5,000,000 10,000,000 (determined without including the acquired assets in the calculation of the Formula Amount) and after giving effect to such acquisition, Borrowers shall have Undrawn Availability of at least $10,000,000 (determined without including the assumption acquired assets in the calculation of debt and payments permitted in Subsection the Formula Amount unless clauses (ii) belowx), (iiy) and (z) below have been satisfied), (4) after giving effect to such transaction, Borrowers shall be in compliance, on a pro forma basis, with Section 6.5 (the Fixed Charge Coverage Ratio to be determined as if such acquisition had occurred on the first day of the first fiscal quarter of the immediately preceding four fiscal quarter period tested under such section and the Net Worth covenant to be determined as of the fiscal quarter end preceding the acquisition), (5) Agent has received a copy of the executed purchase agreement, (6) the aggregate terms of the transaction shall be reasonably satisfactory to Agent, (7) the purchase price of all such acquisitions, inclusive of assumed debt and obligations plus amounts expended pursuant to Section 7.12(bthe acquisition(s) hereof shall does not exceed $5,000,000 during 10,000,000 in the aggregate in any fiscal year, year and (iii8) the amount of liabilities assumed under each acquisition (excluding borrowings to effect the acquisition) is not greater than twice the amount of the cash purchase price of such acquisition. Under no circumstances shall any of the acquired assets be included in the calculation of the Formula Amount unless and until (x) Agent shall have obtains a perfected first priority perfected security interest in the Collateral assets comprising Collateral, (y) Agent has performed all due diligence Agent deems necessary on such acquired assets comprising Collateral, the results of the acquired entity; (iv) the potential acquisition target's board of directors has consented which are reasonably satisfactory to the sale and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is in the same line of business as Borrowers; (vi) the potential acquisition target is located in North America; Agent and (viiz) such acquisition shall be effected through Borrowers and acquired assets otherwise satisfy the Person acquired shall be merged with or into a Borrower at the time eligibility criteria set forth herein. Assuming all other conditions of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable to Agent in its sole discretion within thirty (30) days of the acquisition; and (viii) no assets of the potential acquisition target's shall be included in the Borrowing Base until the potential acquisition target has joined or become a party hereto and the assets are acceptable to Agent in its sole discretion; provided, that at no time shall the amount expended under this Section 7.1 when taken together are complied with, acquisitions in excess of the amount set forth in clause (7) above may be completed with the investments permitted under Section 7.4 (a)consent of the Required Lenders, (b), (c), (d) and (e), the loans or other extensions of credit permitted underwhich consent shall not be unreasonably withheld.

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) or acquire all or a substantial portion substantially all of the assets, division, business, stock or other ownership interests of any Person or permit any other Person to consolidate with or merge with it; provided however, (i) Natmaya and/or Fosmart may be dissolved, (ii) Borrowers may exercise any warrants to obtain stock of DM&E so long as the aggregate amount of funds required to exercise such warrants does not exceed $500,000, (iii) Natmaya and/or Fosmart may be merged with and into ▇▇▇▇▇▇ so long as ▇▇▇▇▇▇ is the surviving corporation, and (iv) ▇▇▇▇▇▇ may purchase or acquire the assets or stock of any Person (other than another Borrowera "Permitted Acquisition") or permit any other Person (other than another Borrower) to consolidate with or merge with it; provided, however, that the Borrowers -------- shall be permitted after notice to Agent and Lenders to acquire (by merger or otherwise, and notwithstanding the limitations set forth in Section 7.6 hereof) all or substantially if all of the following requirements are met in connection with such acquisition: (A) if ▇▇▇▇▇▇ is acquiring the ownership interests in such Person, such Person shall join this Agreement as a Borrower or become a Guarantor for the Obligations as determined by the Agent; (B) in the case of a stock or other ownership purchase, the Person acquired by ▇▇▇▇▇▇ shall ▇▇▇▇▇ Liens in its assets or all or substantially all to the Agent for the benefit of the shares Lenders covering the same type of capital assets as the Collateral, and in the case any of both a stock or other ownership purchase or an asset purchase, ▇▇▇▇▇▇ shall cause the Lien of the Agent to be a Personfirst priority, provided that no perfected security interest; (C) the board of directors or other equivalent governing body of such acquisition Person shall have approved such Permitted Acquisition; (D) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be permitted hereunder unless substantially the same as or related to (iin a commercially reasonable manner) at one or more line or lines of business conducted by the time Borrowers as described in Section 5.22, and the business shall be located in the United States; (E) no Default or Event of Default shall exist immediately prior to and after giving effect to such acquisition, no Event of Default or Default shall have occurred Permitted Acquisition; (F) prior to and be continuing and Undrawn Availability is not less than $5,000,000 after giving effect to such Permitted Acquisition (including the assumption payment of debt any prospective portion of the purchase price or earn-outs), the Borrowers shall have a Fixed Charge Coverage Ratio, calculated on a pro forma basis for the most recent 12 months and payments permitted giving effect to such Permitted Acquisition, of not less than 1.15 to 1.00; 58 (G) prior to and after giving effect to such Permitted Acquisition (including the payment of any prospective portion of the purchase price or earn-outs), the Borrowers shall meet the Minimum Availability Threshold; and (H) the aggregate consideration paid by ▇▇▇▇▇▇ for all such Permitted Acquisitions shall not exceed either (i) $15,000,000 in Subsection the aggregate in any fiscal year of the Borrowers, or (ii) below$30,000,000 in the aggregate during the Term, such amounts in (i) and (ii) the aggregate purchase price to be increased by Net Proceeds of all such acquisitions, inclusive of assumed debt and obligations plus amounts expended pursuant to Section 7.12(b) hereof shall not exceed $5,000,000 during any fiscal year, (iii) Agent shall have a perfected first priority security interest in the Collateral of the acquired entity; (iv) the potential acquisition target's board of directors has consented to the sale and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is in the same line of business as Borrowers; (vi) the potential acquisition target is located in North America; and (vii) such acquisition shall be effected through Borrowers and the Person acquired shall be merged with or into a Borrower at the time of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable to Agent in its sole discretion within thirty (30) days of the acquisition; and (viii) no assets of the potential acquisition target's shall be included in the Borrowing Base until the potential acquisition target has joined or become a party hereto and the assets are acceptable to Agent in its sole discretion; provided, that at no time shall the amount expended under this Section 7.1 when taken together with the investments permitted under Section 7.4 (a), (b), (c), (d) and (e), the loans or other extensions of credit permitted underSignificant Asset Sales.

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) or acquire all or a substantial portion of the assets or stock of any Person (other than another Borrower) or permit any other Person (other than another Borrower) to consolidate with or merge with it; provided, howeveror make any Acquisition, except that: (i) Borrowers may enter into and consummate the Merger Transactions; (ii) Borrowers may make any Acquisition that is funded with the proceeds of an Additional Term Loan, and (iii) Borrowers -------- may make any Acquisitions other than an Acquisition permitted under the preceding Section 7.1(a)(ii) and may (but shall not be permitted after notice required to) use the proceeds of a Revolving Advance to Agent and Lenders to acquire (by merger pay some or otherwise, and notwithstanding the limitations set forth in Section 7.6 hereof) all or substantially all of the assets or all or substantially consideration for such an Acquisition (subject to all of the shares otherwise applicable requirements of capital stock this Agreement for the making of a PersonRevolving Advance (including but not limited to Sections 2.1, provided that no 2.2 and 8.2)), but only if: (A) the total amount of consideration paid in cash by all Borrowers in respect of all such acquisition Acquisitions made pursuant to this Section 7.1(a)(iii) in any fiscal year shall be permitted hereunder unless not exceed $1,000,000 in the aggregate; (iB) at the time total amount of consideration paid in cash by all Borrowers in respect of all such Acquisitions made pursuant to this Section 7.1(a)(iii) during the period from the Closing Date through the Revolving Credit Maturity Date shall not exceed $2,000,000 in the aggregate; (C) both prior to and immediately after giving effect to such acquisitionAcquisition, no Default or Event of Default or Default shall exist, and Borrowers shall have occurred prepared and delivered to Agent a certificate satisfactory in form and substance to Agent in its Permitted Discretion setting forth in reasonable detail Borrowers’ projected pro forma compliance (after giving effect to such Acquisition) with all applicable financial and availability covenants contained in this Agreement as of the last day of the then-current fiscal quarter, with such projections to be continuing and Undrawn Availability is not less than $5,000,000 prepared as if such Acquisition had been consummated on the first day of such then-current fiscal quarter; and (D) after giving effect to the assumption consummation of debt and payments permitted in Subsection (ii) below, (ii) the aggregate purchase price of all any such acquisitions, inclusive of assumed debt and obligations plus amounts expended Acquisition made pursuant to this Section 7.12(b7.1(a)(iii) hereof shall not exceed $5,000,000 during and the funding of any fiscal yearrelated Revolving Advance, (iii) Agent Borrowers shall have a perfected first priority security interest in the Collateral Undrawn Availability of the acquired entity; (iv) the potential acquisition target's board of directors has consented at least $3,000,000. Notwithstanding anything to the sale and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is contrary contained in the same line any provision of business as Borrowers; (vi) the potential acquisition target is located in North America; and (vii) such acquisition shall be effected through Borrowers and the Person acquired shall be merged with or into a Borrower at the time of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable to Agent in its sole discretion within thirty (30) days of the acquisition; and (viii) this Agreement, no assets acquired in any Acquisition (including the assets of the potential acquisition target's any Person being Acquired through a purchase of Equity Interests) shall be included in the Borrowing Base Formula Amount until the potential acquisition target Agent has joined or become received a party hereto field examination and/or appraisal of such assets, in form and the assets are substance acceptable to Agent in Agent. (b) Sell, lease, transfer or otherwise dispose of any of its sole discretion; providedproperties or assets, that at no time shall except (i) dispositions of Inventory and Equipment to the amount expended under this extent expressly permitted by Section 7.1 when taken together with the investments permitted under Section 7.4 (a)4.3, (b)ii) any other sales or dispositions expressly permitted by this Agreement, (c), (d) and (e), the loans iii) renewals of existing leases of Real Estate or other extensions of credit permitted underassets.

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) or acquire all or a substantial portion substantially all of the assets assets, division, business, stock or stock other ownership interests of any Person (other than another Borrower) or permit any other Person (other than another Borrower) to consolidate with or merge with it; provided, provided however, that (i) Foster-Canada, Natmaya and/or F▇▇▇▇▇▇ may be dissolved, (ii) Borrowers may exercise any warrants to obtain stock of DM&E so long as the Borrowers -------- shall aggregate amount of funds required to exercise such warrants does not exceed $500,000, (iii) Fosmart may be permitted after notice to Agent merged with and Lenders to acquire (by merger or otherwiseinto Foster so long as Foster is the ▇▇▇▇▇ving corpora▇▇▇▇, and notwithstanding the limitations set forth in Section 7.6 hereof(iv) all Foster may purchase or substantially acquire ▇▇▇ ▇▇sets or stock of any Person (a "Permitted Acquisition") if all of the assets following requirements are met in connection with such acquisition: (A) if Foster is acquiring the ownersh▇▇ ▇▇▇erests in such Person, such Person shall join this Agreement as a Borrower or all become a Guarantor for the Obligations as determined by the Agent; (B) in the case of a stock or substantially all other ownership purchase, the Person acquired by Foster shall grant Liens in its ▇▇▇▇▇s to the Agent for the benefit of the shares Lenders covering the same type of capital assets as the Collateral, and in the case any of both a stock or other ownership purchase or an asset purchase, Foster shall cause the Lien of ▇▇▇ ▇▇ent to be a Personfirst priority, provided that no perfected security interest; (C) the board of directors or other equivalent governing body of such acquisition Person shall have approved such Permitted Acquisition; (D) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be permitted hereunder unless substantially the same as one or more line or lines of business conducted by the Borrowers as described in Section 5.22, and the business shall be located in the United States; (iE) at the time no Default or Event of Default shall exist immediately prior to and after giving effect to such acquisition, no Event of Default or Default shall have occurred and be continuing and Undrawn Availability is not less than $5,000,000 Permitted Acquisition; (F) after giving effect to such Permitted Acquisition (including the assumption payment of debt and payments permitted any prospective portion of the purchase price or earn-outs), the Borrowers shall have at least $8,000,000 of Undrawn Availability; and (G) the aggregate consideration paid by Foster for all such Permitted A▇▇▇▇▇▇tions shall not exceed either $5,000,000 in Subsection the aggregate in any fiscal year of the Borrowers or $10,000,000 in the aggregate during the Term. (iib) belowSell, lease, transfer or otherwise dispose of any of its properties or assets, except (i) the sale of Inventory in the ordinary course of its business, (ii) the aggregate purchase price sale, disposition or transfer of all such acquisitions, inclusive Equipment which Foster determines is no longer ▇▇▇▇▇▇ed for the operation of assumed debt and obligations plus amounts expended pursuant to Section 7.12(b) hereof shall not exceed $5,000,000 during any fiscal year, (iii) Agent shall have a perfected first priority security interest in the Collateral of the acquired entity; (iv) the potential acquisition target's board of directors has consented to the sale and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is in the same line of business as Borrowers; (vi) the potential acquisition target is located in North America; and (vii) such acquisition shall be effected through Borrowers and the Person acquired shall be merged with or into a Borrower at the time of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable to Agent in its sole discretion within thirty (30) days of the acquisition; and (viii) no assets of the potential acquisition target's shall be included in the Borrowing Base until the potential acquisition target has joined or become a party hereto and the assets are acceptable to Agent in its sole discretion; provided, that at no time shall the amount expended under this Section 7.1 when taken together with the investments permitted under Section 7.4 (a), (b), (c), (d) and (e), the loans or other extensions of credit permitted underbusiness,

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) or acquire all or a substantial portion of the assets or stock Equity Interests of any Person (other than another Borrower) or permit any other Person (other than another Borrower) to consolidate with or merge with it; , provided, however, that the Borrowers -------- shall be permitted after notice to Agent and Lenders to acquire (by merger or otherwise, and notwithstanding the limitations set forth in Section 7.6 hereof) all or substantially all of the assets or all or substantially all of the shares of capital stock of a Person, provided that no Borrower may enter into any such acquisition shall be permitted hereunder unless transactions so long as (i) they do not exceed the sum of $15,000,000 in the aggregate, and (ii) effective as of the closing date of such acquisition and for the period commencing seven (7) days prior to the closing date through the date of the closing of such acquisition, the Borrower has a Minimum Undrawn Availability of at the time of and least $2,000,000 after giving effect to such acquisitionacquisition (which shall include assets acquired by the Borrower with regard to such transaction solely upon completion by the Agent to it satisfaction of a field examination), and either (I) finance such with Advances so long as (A) the Borrower is the surviving entity after such transaction is completed, (B) the aggregate amount of Advances used by the Borrower and attributable to such transactions does not exceed $6,500,000 during the Term, (C) the aggregate amount of Advances used by the Borrower and attributable to such transactions does not exceed $3,000,000 during any consecutive twelve (12) month period during the Term, (D) the aggregate amount of any single Advance requested by the Borrower to pay for any such transactions does not exceed $3,000,000, (E) any Subsidiary and/or Affiliate created with regard to such transaction becomes a “Borrower” hereunder and under the Other Documents simultaneously with the closing of such transaction, (F) such transaction would not cause any additional Liens, encumbrances and/or judgments to be placed on Borrower and/or any assets of Borrower, other than Permitted Encumbrances, (G) no Default or Event of Default exists at the time of such transaction or Default shall have occurred be caused by such transaction, (H) the target of the acquisition or the business acquired as a result of such acquisition is in the same industry as the Borrower, and (I) the Borrower provides evidence reasonably satisfactory to the Agent that the Borrower, on a pro forma basis, will be continuing in compliance with all of the terms and Undrawn Availability is not less than $5,000,000 conditions set forth in this Agreement after giving effect to any acquisition or (II) finance such transaction without utilizing Advances so long as (A) the assumption of debt and payments permitted in Subsection (ii) belowBorrower is the surviving entity after such transaction is completed, (iiB) any Subsidiary and/or Affiliate created with regard to such transaction becomes a “Borrower” hereunder and under the Other Documents simultaneously with the closing of such transaction, (C) such transaction would not cause any additional Liens, encumbrances and/or judgments to be placed on Borrower and/or any assets of Borrower, other than Permitted Encumbrances, (D) no Default or Event of Default exists at the time of such transaction or shall be caused by such transaction, (E) the aggregate purchase price of all such acquisitions, inclusive of assumed debt and obligations plus amounts expended pursuant to Section 7.12(b) hereof shall not exceed $5,000,000 during any fiscal year, (iii) Agent shall have a perfected first priority security interest in the Collateral target of the acquisition or the business acquired entity; (iv) the potential as a result of such acquisition target's board of directors has consented to the sale and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is in the same line of business industry as Borrowers; the Borrower, and (viF) the potential acquisition target is located Borrower provides evidence reasonably satisfactory to the Agent that the Borrower, on a pro forma basis, will be in North America; compliance with all of the terms and conditions set forth in this Agreement after giving effect to any acquisition. (b) Sell, lease, transfer or otherwise dispose of any of its properties or assets, except (i) dispositions of Inventory and Equipment to the extent expressly permitted by Section 4.3 and (viiii) such acquisition shall be effected through Borrowers and the Person acquired shall be merged with any other sales or into a Borrower at the time of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable to Agent in its sole discretion within thirty (30) days of the acquisition; and (viii) no assets of the potential acquisition target's shall be included in the Borrowing Base until the potential acquisition target has joined or become a party hereto and the assets are acceptable to Agent in its sole discretion; provided, that at no time shall the amount expended under dispositions expressly permitted by this Section 7.1 when taken together with the investments permitted under Section 7.4 (a), (b), (c), (d) and (e), the loans or other extensions of credit permitted underAgreement.

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into Consummate any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) or acquire all or a substantial portion of the assets or stock Equity Interests of any Person (other than another Borrower) or permit any other Person (other than another Borrower) to consolidate with or merge with it; except, that, (i) a Loan Party may merge or consolidate into another Loan Party so long as (A) no Event of Default shall have occurred and be continuing, (B) Administrative Loan Party shall give Agent at least ten (10) Business Days prior notice thereof, (C) if a Borrower is a party to such merger or consolidation a Borrower shall be the surviving entity; provided, howeverthat, any assets of the Person so acquired from any Person that was not a Borrower prior thereto shall only be eligible for inclusion into the Borrowers -------- Borrowing Base to the extent that Agent has completed an appraisal, collateral audit and/or field examination (as the case may be) with respect thereto and the criteria for eligibility set forth herein (or such other or additional criteria as Agent may, at its option, establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may establish in connection with the assets of the Person so acquired) are satisfied with respect thereto in a manner acceptable to Agent, (D) no Loan Party shall be permitted after notice merge or consolidate with a Loan Party that exists under the laws of a country different than the country in which such Loan Party exists and (E) prior to Agent and Lenders to acquire (by such merger or otherwiseconsolidation Loan Parties have taken (or caused to be taken) all steps required by Agent with respect thereto (including without limitation all steps required by Agent to maintain Agent’s Lien on the Collateral granted by such Loan Parties, as well as the priority and effectiveness of such Lien); (ii) a Subsidiary of Borrowers that is not a Loan Party may merge or consolidate into another Subsidiary of Borrowers that is not a Loan Party so long as (A) no Event of Default shall have occurred and be continuing, (B) Administrative Loan Party shall give Agent at least ten (10) Business Days prior notice thereof, and notwithstanding the limitations set forth in Section 7.6 hereof(C) prior to such merger or consolidation Loan Parties have taken (or caused to be taken) all steps required by Agent with respect thereto, and (iii) a Loan Party may consummate a Permitted Acquisition. (b) Acquire all or substantially all a substantial portion of the assets or all Equity Interests of any Person except for investments permitted by Section 7.4. (c) Directly or substantially all indirectly, sell, assign, lease, transfer, abandon or otherwise dispose of any of its assets or properties (including, without limitation, the shares of capital stock of Collateral) to any other Person (each, a Person“Disposition”), provided that no such acquisition shall be permitted hereunder unless except for: (i) at the time sale of and after giving effect to such acquisition, Inventory in the ordinary course of business, (ii) provided no Default or Event of Default or Default shall have occurred and be continuing or result therefrom, the Disposition of assets (other than equity interests of any of its Subsidiaries) having a fair market value not to exceed $2,500,000 in the aggregate in any fiscal year so long as at least seventy-five (75%) percent of the consideration payable on account thereof shall consist of cash and/or Cash Equivalents; (iii) the sale, lease, transfer or other Disposition of property by a Loan Party or a Subsidiary of a Loan Party to any other Loan Party or Subsidiary of a Loan Party; provided, that, (A) if a Borrower or any of its assets is subject to a Disposition, all parties to such Disposition must be Borrowers, (B) if a Loan Party or any of its assets is subject to a Disposition, all parties to such Disposition must be Loan Parties, (C) if a US Loan Party or any of its assets is subject to a Disposition, all parties to such Disposition must be US Loan Parties, (D) no such sale, lease, transfer or other Disposition shall be made to Parent, (E) to the extent such transaction constitutes an investment, such transaction must be permitted under Section 7.4 and Undrawn Availability (F) any Lien in favor of Agent on such property shall continue in all respects and shall not be deemed released or terminated as a result of such sale, lease, transfer or other Disposition and Loan Parties shall execute and deliver such agreements, documents and instruments as Agent may reasonably request with respect thereto; (iv) the sale, lease, transfer or Disposition of used, worn-out or obsolete machinery and equipment and machinery and equipment no longer used or useful in the conduct of business of Loan Parties or any of their Subsidiaries having a fair market value not to exceed $1,000,000 in the aggregate in any fiscal year; (v) the grant in the ordinary course of business by any Loan Party or any of their Subsidiaries after the date hereof of a non-exclusive license of any Intellectual Property; provided, that, the rights of the licensee shall be subject to the rights of Agent, and shall not adversely affect, limit or restrict the rights of Agent to use such Intellectual Property or to sell or otherwise dispose of any Inventory or other Collateral in connection with the exercise by Agent of any rights or remedies hereunder or under any of the Other Documents, or otherwise adversely limit or interfere in any material respect with the use of any such Intellectual Property by Agent in connection with the exercise of its rights or remedies hereunder or under any of the Other Documents or by any Loan Party or Subsidiary; (vi) the issuance of Equity Interests by Loan Parties; provided, that, (A) no Loan Party or Subsidiary shall be required to pay any cash dividends, distributions or repurchase or redeem such Equity Interests or make any other payments in respect thereof, except as otherwise expressly permitted in Section 7.7 and (B) none of Borrowers or their Subsidiaries shall issue any Equity Interests other than to their then current holder(s) of their Equity Interests (all of which holders must be a Loan Party or Subsidiary); (vii) the issuance of Equity Interests by Parent consisting of common stock (or its equivalent) pursuant to an employee stock option plan or grant or similar equity plan or 401(k) plan of Loan Parties and their Subsidiaries for the benefit of their employees, directors and officers; (viii) the abandonment or other disposition of Intellectual Property that is not less than $5,000,000 after giving effect material and is no longer used or useful in any material respect in the business of any Loan Party or any of its Subsidiaries and does not appear on or is otherwise not affixed to or incorporated in any Inventory or Equipment or have any material value; (ix) involuntary Dispositions occurring by reason of casualty or condemnation; (x) the leasing, occupancy agreements or sub-leasing of Real Property or Equipment in the ordinary course of business consistent with past practices that would not materially interfere with the required use of such Real Property or Equipment by any Loan Party or any of its Subsidiaries; (xi) transfers of condemned real property as a result of the exercise of “eminent domain” or other similar policies to the assumption respective governmental authority or agency that has condemned the same (whether by deed in lieu of debt condemnation or otherwise), and payments transfers of properties that have been subject to a casualty to the respective insurer of such real property as part of an insurance settlement; (xii) any Disposition of property or assets, or issuance of Equity Interests, that is permitted in Subsection under Sections 7.1(a) and 7.7; and (iixiii) below, (ii) the aggregate purchase price Dispositions of all such acquisitions, inclusive Permitted Factored Accounts due from any customer of assumed debt and obligations plus amounts expended any Loan Party pursuant to Section 7.12(bany Receivable Financing Agreement (subject to the Terms of the Lien Release and Assignment Agreement) hereof provided, that, the dollar amount of Permitted Factored Accounts Disposed of by the Loan Parties in reliance on this clause (xiii) during any Fiscal Year shall not exceed $5,000,000 during any fiscal year, (iii) Agent shall have a perfected first priority security interest in the Collateral of the acquired entity; (iv) the potential acquisition target's board of directors has consented to the sale and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is in the same line of business as Borrowers; (vi) the potential acquisition target is located in North America; and (vii) such acquisition shall be effected through Borrowers and the Person acquired shall be merged with or into a Borrower at the time of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable to Agent in its sole discretion within thirty (30) days of the acquisition; and (viii) no assets of the potential acquisition target's shall be included in the Borrowing Base until the potential acquisition target has joined or become a party hereto and the assets are acceptable to Agent in its sole discretion; provided, that at no time shall the amount expended under this Section 7.1 when taken together with the investments permitted under Section 7.4 (a), (b), (c), (d) and (e), the loans or other extensions of credit permitted underaggregate.

Merger, Consolidation, Acquisition and Sale of Assets. (a) Enter into any merger, consolidation or other reorganization with or into any other Person (other than another Borrower) a Borrower or acquire all or a substantial portion of the assets or stock of any Person (other than another Borrower) a Borrower or permit any other Person (other than another Borrower) a Borrower to consolidate with or merge with it; provided, however, (x) that the Borrowers -------- shall be permitted after notice to Agent and Lenders to any Borrower can merge with or into, or can acquire (by merger or otherwise, and notwithstanding the limitations set forth in Section 7.6 hereof) all or substantially all a substantial portion of the assets or all or substantially all of the shares of capital stock of a Personof, provided that no such acquisition shall be permitted hereunder unless any Person if (i) at prior to such merger or acquisition, no Default or Event of Default has occurred or will exist after giving effect to such merger or acquisition (for purposes of determining compliance with Sections 6.6, 6.7 and 6.8 hereof, the time covenants set forth in such sections shall be tested on a pro forma basis as if such acquisition had already occurred during the applicable fiscal period end immediately before the acquisition occurred), (ii) such Person conducts substantially the same business as such Borrower, (iii) such Borrower controls the merged or acquired Person and the surviving Person becomes a Borrower hereunder or a Guarantor and (iv) the price paid by such Borrower for such merger or acquisition is paid in either the stock of such Borrower and/or Indebtedness for borrowed money otherwise permitted under this Agreement or from the proceeds of any sale of additional equity interests permitted hereunder in any Borrower and (y) Borrowers may acquire additional ▇▇▇▇▇▇-Field Express Companies provided that (i) prior to such acquisition and after giving effect to such acquisition, no Default or Event of Default or Default has occurred (for purposes of determining compliance with Sections 6.6, 6.7 and 6.8 hereof, the covenants set forth in such sections shall have be tested on a pro forma basis as if such acquisition had already occurred during the applicable fiscal period end immediately before the acquisition occurred) and be continuing and Undrawn Availability is not less than $5,000,000 (ii) after giving effect to such acquisition, Borrowers have Undrawn Availability of at least $6,000,000. (b) Without the assumption prior written consent of debt Required Lenders (which consent shall not be unreasonably withheld), sell, lease, transfer or otherwise dispose of any of its properties or assets, except in the ordinary course of its business; provided, however, each Borrower may sell, lease, transfer or otherwise dispose of its assets so long as the following conditions are met: (i) no Event of Default has occurred and payments permitted is continuing prior to such disposition, or will exist after giving effect to such disposition (for purposes of determining compliance with Sections 6.6, 6.7 and 6.8 hereof, the covenants set forth in Subsection (ii) belowsuch sections shall be tested on a pro forma basis as if such disposition had already occurred during the applicable fiscal period end immediately before the disposition occurred), (ii) the aggregate purchase price assets being sold are sold at their fair market value and not less than their book value, (iii) the disposition has been approved by the Board of Directors of the applicable Borrower, (iv) (a) if the assets being sold are Collateral, the dispositions are for cash and the total consideration for all such acquisitionsdispositions of Borrowers does not exceed $1,000,000 in the aggregate, inclusive (b) if the assets being sold are not Collateral and are used in the ordinary course in any Borrower's business, the dispositions are for cash or cash equivalents and the total consideration for all such dispositions of assumed debt and obligations plus amounts expended pursuant to Section 7.12(b) hereof shall Borrowers does not exceed $5,000,000 during any fiscal year, (iii) Agent shall have a perfected first priority security interest in the aggregate and (c) if the assets being sold are not Collateral and are no longer used in the ordinary course in any Borrower's business, then there is no limitation on the maximum amount of the acquired entity; (iv) the potential acquisition target's board of directors has consented to the sale total consideration for all such dispositions and such sale is not otherwise a hostile acquisition; (v) the potential acquisition target is in the same line cash proceeds of business as Borrowers; (vi) the potential acquisition target is located in North America; and (vii) such acquisition shall be effected through Borrowers and the Person acquired shall be merged with or into a Borrower at the time of consummation of the acquisition or become a Borrower hereunder subject to a joinder acceptable any disposition are remitted to Agent to be applied to the Obligations in such order as Agent may in its sole discretion within thirty (30) days determine and, if the proceeds of the acquisition; and (viii) no assets of the potential acquisition target's shall be included any disposition are not in the Borrowing Base until the potential acquisition target has joined or become a party hereto and the assets cash, then as such proceeds are acceptable converted to cash, such cash is delivered to Agent to be applied to the Obligations in such order as Agent may in its sole discretion; discretion determine. (c) Except as set forth in Section 7.7 hereof, issue, sell, transfer or otherwise dispose of, or make an equity offering for the sale of, any stock of any of the Borrowers, provided, that at no time shall however (i) Holdings may issue, sell, transfer or otherwise dispose of the amount expended under this Section 7.1 when taken together with the investments permitted under Section 7.4 common stock of Express and may make an equity offering of additional shares of its own common stock and (a)ii) Express may issue additional shares of common stock and make an equity offering of its own common stock, if in each case set forth in clauses (b), (c), (di) and (e)ii) above, after giving effect to such issuance and related sale, disposition or offering, as respects Holdings no Change of Control has occurred and as respects Express, Holdings or any Subsidiary of Holdings owns at least fifty-one percent (51%) of the outstanding stock of Express, and, if an Event of Default has occurred and is continuing, the loans proceeds of such sale, disposition or other extensions of credit permitted underoffering are remitted to Agent to be applied to the Obligations in such order as Agent may in its sole discretion determine.