Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party or any Subsidiary to enter into any transaction of merger or consolidation, except that (i) any Person may merge into the Borrower or any Credit Party in connection with a Permitted Acquisition; provided that (A) if the Borrower is a party to such transaction, the Borrower shall be the surviving entity, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11; (ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiary, (y) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (z) any Credit Party (other than the Borrower) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party; and (iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5. (b) No Credit Party shall make any Acquisition, unless such Acquisition is permitted under Section 8.6.
Appears in 3 contracts
Samples: Credit Agreement (Cree, Inc.), Credit Agreement (Cree Inc), Credit Agreement (Cree Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party Dissolve, liquidate or any Subsidiary to wind up its affairs or enter into any transaction of merger merger, amalgamation or consolidation; provided, except that
however, that (i) the Company may merge, amalgamate or consolidate with any Person of its Subsidiaries (other than Graybar Canada) provided that the Company shall be the continuing or surviving corporation, (ii) Graybar Canada may merge, amalgamate or consolidate with any of its Subsidiaries provided that Graybar Canada shall be the continuing or surviving corporation, (iii) any Subsidiary Guarantor may merge into the Borrower or consolidate with any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with any Credit Party in connection with a Permitted Acquisition; provided that (A) if so long as the Borrower is a party to such transaction, the Borrower Credit Party shall be the continuing or surviving entitycorporation, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiary, (yv) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated merged with or into, or be liquidated into, into any other Domestic Subsidiary or that is not a Credit Party; and , (zvi) any Foreign Subsidiary that is not a Credit Party may be merged with or into or amalgamated with any other Foreign Subsidiary that is not a Credit Party, (vii) any Credit Party or any Subsidiary of any Credit Party may merge or amalgamate with any other Person in connection with a Permitted Acquisition if such Credit Party or any Subsidiary Guarantor or such Subsidiary, as applicable, shall be the continuing or surviving corporation, (viii) any one or more of Graybar Services, Inc. and Graybar Financial Services, Inc. may be dissolved so long as all of the assets of the Person being dissolved have been transferred to a Credit Party prior to or concurrently with such dissolution and (ix) any Subsidiary that is not a Credit Party may be dissolved so long as (x) all of the assets of such Subsidiary have been transferred to a Credit Party prior to or concurrently with such dissolution and (y) the aggregate total net revenues (determined on a consolidated basis in accordance with GAAP) of all Subsidiaries dissolved pursuant to this Section 10.5(a) (other than Graybar Services, Inc. and Graybar Financial Services, Inc.) does not exceed 5% of the Borroweraggregate total net revenues (determined in accordance with GAAP) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party; and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5the Company and its Subsidiaries.
(b) No Make any Asset Dispositions (including, without limitation, any Sale Leaseback Transaction) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of any Credit Party’s or any such Subsidiary’s business, (iii) the sale or disposition of Securitization Receivables in connection with a Securitization Transaction, or (iv) such other Asset Dispositions, provided that (A) the consideration for such assets disposed of represents the fair market value of such assets at the time of such Asset Disposition; and (B) the cumulative net book value of all Asset Dispositions by any Credit Party and any of its Subsidiaries during any single fiscal year shall make not exceed 15% of the Consolidated Total Assets determined as of the end of the most recently completed fiscal year.
(c) Acquire all or substantially all of the assets or business or the majority of Voting Stock of any Person except in connection with a Permitted Acquisition, unless such Acquisition is permitted under Section 8.6.
Appears in 2 contracts
Samples: Private Shelf Agreement (Graybar Electric Co Inc), Private Shelf Agreement (Graybar Electric Co Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party or any Subsidiary member of the Consolidated Group to enter into any transaction of merger or consolidation, except that
(i) any Person a member of the Consolidated Group may merge into be party to a transaction of merger or consolidation with another member of the Borrower or any Credit Party in connection with a Permitted Acquisition; Consolidated Group, provided that (A) if either of the Borrower Borrowers is a party to such transaction, the a Borrower shall be the surviving entityentity (except in the case of a merger or consolidation of a Borrower with the Parent), (B) if a Guarantor is a party to such transaction and the Borrower is Borrowers are not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be mergeda party to a transaction of merger or consolidation with a Person other than a member of the Consolidated Group, amalgamated or consolidated provided that (A) the surviving entity shall be a Subsidiary and shall take such actions as may be necessary for compliance with or into, or be liquidated into, any other Credit Party or Subsidiarythe provisions of Section 7.11, (yB) any Domestic Subsidiary that is not a Credit Party may be mergedno Default or Event of Default shall exist immediately after giving effect thereto, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (zC) any Credit Party (other than the Borrower) may transaction shall otherwise be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Partypermitted under Section 8.4(b); and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5.
(b) No Credit Party member of the Consolidated Group shall make any Acquisition, unless such unless:
(i) if the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will not be a Subsidiary, the Acquisition is permitted under Section 8.6; and
(ii) if (A) the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will be a Subsidiary or (B) the Acquisition is of all or any substantial portion of the Property of another Person, the Acquisition meets the following conditions:
(I) the Person or Property which is the subject of such Acquisition shall be in the same or similar line of business (or related thereto) as the members of the Consolidated Group which are parties thereto;
(II) in the case of a merger or consolidation, and in other cases where appropriate, the board of directors or other governing body of the other Person which is the subject of the transaction of merger or consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately after giving effect to such Acquisition;
(IV) the Borrower Representative shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the covenants set forth in Section 7.10;
(V) if the Acquisition involves an interest in a partnership and a requirement that a member of the Consolidated Group be a general partner, the general partner shall be a newly formed special purpose Subsidiary;
(VI) the Credit Parties shall, and shall cause the party which is the subject of the Acquisition to, take such actions as may be necessary for compliance with the provisions of Section 7.11; and
(VII) in the case of the Acquisition of Property and Acquisitions of Capital Stock of any Person, unless the Borrower Representative has delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that the Consolidated Total Leverage Ratio on a Pro Forma Basis after giving effect to any such Acquisition is less than 3.00:1.0, the Total Consideration paid in connection with any such Acquisition (or series of related Acquisitions) shall not exceed $50,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Owens & Minor Inc/Va/), Credit Agreement (Owens & Minor Inc/Va/)
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party or any Subsidiary member of the Consolidated Group to enter into any transaction of merger or consolidation, except that
(i) any Person a member of the Consolidated Group may merge into be party to a transaction of merger or consolidation with another member of the Borrower or any Credit Party in connection with a Permitted Acquisition; Consolidated Group, provided that (A) if the Borrower is a party to such transaction, the -------- Borrower shall be the surviving entity, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be mergeda party to a transaction of merger or consolidation with a Person other than a member of the Consolidated Group, amalgamated or consolidated provided that (A) the surviving entity shall be a Subsidiary and shall take -------- such actions as may be necessary for compliance with or into, or be liquidated into, any other Credit Party or Subsidiarythe provisions of Section 7.11, (yB) any Domestic Subsidiary that is not a Credit Party may be mergedno Default or Event of Default shall exist immediately after giving effect thereto, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (zC) any Credit Party (other than the Borrower) may transaction shall otherwise be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Partypermitted under Section 8.4(b); and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5.
(b) No Credit Party member of the Consolidated Group shall make any Acquisition, unless such unless:
(i) if the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will not be a Subsidiary, the Acquisition is permitted under Section 8.6; and
(ii) if (A) the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will be a Subsidiary or (B) the Acquisition is of all or any substantial portion of the Property of another Person, the Acquisition meets the following conditions:
(I) the Person or Property which is the subject of such Acquisition shall be in the same or similar line of business (or related thereto) as the members of the Consolidated Group which are parties thereto;
(II) in the case of a merger or consolidation, and in other cases where appropriate, the board of directors or other governing body of the other Person which is the subject of the transaction of merger or consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately after giving effect to such Acquisition;
(IV) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the covenants set forth in Section 7.10;
(V) if the Acquisition involves an interest in a partnership and a requirement that a member of the Consolidated Group be a general partner, the general partner shall be a newly formed special purpose Subsidiary;
(VI) the Credit Parties shall, and shall cause the party which is the subject of the Acquisition to, take such actions as may be necessary for compliance with the provisions of Sections 7.11;
(VII) in the case of Acquisitions of Foreign Property and Acquisitions of Capital Stock of a Foreign Person, the Total Consideration paid in connection with all such Acquisitions shall not exceed $15,000,000 in the aggregate; and
(VIII) in the case of the Acquisition of Domestic Property and Acquisitions of Capital Stock of a Domestic Person, unless the Borrower has delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that the Consolidated Senior Leverage Ratio on a Pro Forma Basis after giving effect to any such Acquisition is less than 2.50:1.0, the Total Consideration paid in connection with any such Acquisition (or series of related Acquisitions) shall not exceed $25,000,000.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties WLI will not, and will not permit any Credit Party Subsidiary to, wind up, liquidate or any Subsidiary to dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of all or any part of its property or assets or purchase, lease or otherwise acquire all or any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials and equipment in the ordinary course of business) or agree to do any of the foregoing at any future time (without a contingency relating to obtaining any required approval hereunder or the prior or contemporaneous satisfaction of the Obligations), except thatthat the following shall be permitted:
(ia) (I) any Person may merge into the Borrower or any Domestic Credit Party in connection with a Permitted Acquisition; provided that (A) if the Borrower is a party to such transaction, the Borrower shall be the surviving entity, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated merged or consolidated with or into, or be liquidated into, or transfer all or any other part of its business, properties and assets to another Domestic Credit Party that is a Material Subsidiary (provided that in any such transaction involving (x) WLI, WLI shall be the surviving party or Subsidiary, (y) a Material Subsidiary (where WLI is not a party), a Material Subsidiary shall be the surviving party), (II) any Domestic Foreign Subsidiary that is not a Credit Party Guarantor may be merged, amalgamated merged or consolidated with or into, or be liquidated into, any Domestic another Foreign Subsidiary or Credit Party; and that is a Guarantor, (zIII) any Credit Party (other than the Borrower) Foreign Subsidiary that is not a Guarantor may be merged, amalgamated merged or consolidated with or into, or be liquidated into, another Foreign Subsidiary (provided that in any such transaction involving a Guarantor, such Guarantor is the surviving party), (IV) all or any part of the business, properties and assets of a Foreign Subsidiary that is not a Guarantor may be conveyed or otherwise transferred to another Foreign Subsidiary, (V) any Foreign Subsidiary that is not a Material Subsidiary (or, if not a Guarantor, whose liquidation is consented to by the Agents) may be liquidated and (VI) assets of WLI, any Domestic Credit Party and/or any Foreign Subsidiary that is a Guarantor may be conveyed or otherwise transferred to Foreign Subsidiaries that are not Guarantors provided that after giving effect thereto the NFG Investments shall not exceed $30,000,000;
(b) capital expenditures to the extent not prohibited by Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.06;
(d) WLI and each Subsidiary may lease (as lessee) real or personal property in the ordinary course of business (so long as such lease does not create a Capitalized Lease Obligation not otherwise permitted by Section 8.04(d) or would not violate Section 8.07);
(e) licenses or sublicenses by WLI or any Subsidiary of intellectual property in the ordinary course of business;
(f) the Acquisition (including all intercompany loans, advances and investments made on the Closing Date to effectuate same);
(g) any Borrower or Guarantor may acquire (other Credit Partythan through an unsolicited public offer) assets constituting all or substantially all of a business, business unit, division or product line of any Person not already a Subsidiary of such Person or capital stock of any such Person (including any such acquisition by way of merger or consolidation) to the extent (x) if such acquired Person or the surviving entity of such merger or consolidation will be a Material Subsidiary, such Person or surviving entity becomes a Guarantor (unless not permitted to do so under local law) and executes appropriate Security Documents to secure its Guaranty with its assets (unless waived by the Administrative Agent) and (y) the capital stock of such Person or surviving entity is pledged pursuant to a Pledge Agreement (any such acquisition permitted by this clause (g), a "Permitted Acquisition"), so long as (i) after giving effect to such Permitted Acquisition WLI is in compliance with Section 8.01, (ii) no Default under Section 9.01 or Event of Default then exists, (iii) PRO FORMA compliance is established to the Agents' satisfaction with the covenants contained in Sections 8.10 through 8.13 after giving effect to such Permitted Acquisition as if such Permitted Acquisition were consummated on the first day of the Test Period then last ending, (iv) the Agents have received financial projections for the acquired business or Person, (v) the Required Lenders' consent shall have been obtained if the total cash consideration paid for (I) any such acquisition or related series of acquisitions exceeds $100 million or (II) all Permitted Acquisitions after the Closing Date exceeds $250 million and (vi) after giving effect to such Permitted Acquisition and the Loans, if any, incurred to finance same the Total Unutilized Commitment is at least $150 million;
(h) acquisitions (other than through an unsolicited public offer) not otherwise permitted pursuant to the foregoing provisions of this Section 8.02 to the extent that the aggregate amount of cash consideration paid for all such acquisitions does not exceed $50 million (or the equivalent) provided that at the time of each such acquisition PRO FORMA compliance is established to the Agents' satisfaction with the covenants contained in Sections 8.10 through 8.13 after giving effect to such acquisition as if such acquisition were consummated on the first day of the Test Period then last ended; and
(iiii) a Subsidiary may enter into a transaction other sales or dispositions of merger or consolidation assets PROVIDED that (w) the provisions of Sections 3.03(c) and/or 4.02(A)(b)(x) are complied with in connection with therewith (to the extent applicable), (x) each such sale shall be in an Asset Disposition with respect amount at least equal to the fair market value thereof and, in the case of sales for Net Proceeds in excess of $10 million, for proceeds consisting of at least 75% cash, (y) other than in the case of any such sale or disposition listed on Annex V hereto, the Agents shall have consented thereto to the extent the Net Proceeds of any such sale or disposition, or related series of sales or disposition, exceed $100 million (or the equivalent) and (z) the sale or disposition of the capital stock of (i) any Borrower shall be prohibited and (ii) any other Subsidiary shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary permitted under Section 8.5owned by WLI and its other Subsidiaries.
(b) No Credit Party shall make any Acquisition, unless such Acquisition is permitted under Section 8.6.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party Dissolve, liquidate or any Subsidiary to wind up its affairs or enter into any transaction of merger merger, amalgamation or consolidation; provided, except that
however that (i) the Company may merge, amalgamate or consolidate with any Person of its Subsidiaries (other than Graybar Canada) provided that the Company shall be the continuing or surviving corporation, (ii) Graybar Canada may merge, amalgamate or consolidate with any of its Subsidiaries provided that Graybar Canada shall be the continuing or surviving corporation, (iii) any Subsidiary Guarantor may merge into the Borrower or consolidate with any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with any Credit Party in connection with a Permitted Acquisition; provided that (A) if so long as the Borrower is a party to such transaction, the Borrower Credit Party shall be the continuing or surviving entitycorporation, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiary, (yv) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated merged with or into, or be liquidated into, into any other Domestic Subsidiary or that is not a Credit Party; and , (zvi) any Foreign Subsidiary that is not a Credit Party may be merged with or into or amalgamated with any other Foreign Subsidiary that is not a Credit Party, (vii) any Credit Party or any Subsidiary of any Credit Party may merge or amalgamate with any other Person in connection with a Permitted Acquisition if such Credit Party or any Subsidiary Guarantor or such Subsidiary, as applicable, shall be the continuing or surviving corporation, (viii) any one or more of Graybar Services, Inc. and Graybar Financial Services, Inc. may be dissolved so long as all of the assets of the Person being dissolved have been transferred to a Credit Party prior to or concurrently with such dissolution, and (ix) any Subsidiary that is not a Credit Party may be dissolved so long as (x) all of the assets of such Subsidiary have been transferred to a Credit Party prior to or concurrently with such dissolution and (y) the aggregate total net revenues (determined on a consolidated basis in accordance with GAAP) of all Subsidiaries dissolved pursuant to this Section 10.5(a) (other than Graybar Services, Inc. and Graybar Financial Services, Inc.) does not exceed 5% of the Borrower) may be merged, amalgamated or consolidated aggregate total net revenues of the Company and its Subsidiaries (determined in accordance with or into, or be liquidated into, any other Credit Party; and
(iii) a Subsidiary may enter into a transaction GAAP as of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5the end of the most recently completed fiscal year).
(b) No Make any Asset Dispositions (including, without limitation, any Sale Leaseback Transaction) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of any Credit Party’s or any such Subsidiary’s business, (iii) the sale or disposition of Securitization Receivables in connection with a Securitization Transaction, or (iv) such other Asset Dispositions, provided that (A) the consideration for such assets disposed of represents the fair market value of such assets at the time of such Asset Disposition; and (B) the cumulative net book value of all Asset Dispositions by any Credit Party and any of its Subsidiaries during any single fiscal year shall make not exceed 20% of Consolidated Total Assets determined as of the end of the most recently completed fiscal year.
(c) Acquire all or substantially all of the assets or business or the majority of Voting Stock of any Person except in connection with a Permitted Acquisition, unless such Acquisition is permitted under .”
(c) Section 8.6.10.10
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party Dissolve, liquidate or any Subsidiary to wind up their affairs or enter into any transaction of merger merger, amalgamation or consolidation; provided, except that
however that (i) the Parent Borrower may merge, amalgamate or consolidate with any Person may merge into of its respective Subsidiaries (other than the Borrower or any Credit Party in connection with a Permitted Acquisition; Canadian Borrower) provided that (A) if the Borrower is a party to such transaction, the Parent Borrower shall be the continuing or surviving entitycorporation, (Bii) if a the Canadian Borrower may merge, amalgamate or consolidate with any of its respective Subsidiaries provided that the Canadian Borrower shall be the continuing or surviving corporation, (iii) any Subsidiary Guarantor is a party to such transaction and the Borrower may merge or consolidate with any other Subsidiary Guarantor, (iv) any Subsidiary that is not a party to such transactionCredit Party may merge, a Guarantor amalgamate or consolidate with any Credit Party so long as the Credit Party shall be the continuing or surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiarycorporation, (yv) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated merged with or into, or be liquidated into, into any other Domestic Subsidiary or that is not a Credit Party; and , (zvi) any Foreign Subsidiary that is not a Credit Party may be merged with or into or amalgamated with any other Foreign Subsidiary that is not a Credit Party, (vii) any Credit Party or any Subsidiary of any Credit Party may merge or amalgamate with any other Person in connection with a Permitted Acquisition if such Credit Party or such Subsidiary, as applicable, shall be the continuing or surviving corporation, (viii) any one or more of Graybar Services, Inc. and Graybar Financial Services, Inc. may be dissolved so long as all of the assets of the Person being dissolved have been transferred to a Domestic Credit Party prior to or concurrently with such dissolution and (ix) any Subsidiary that is not a Credit Party may be dissolved so long as (x) all of the assets of such Subsidiary have been transferred to a Domestic Credit Party prior to or concurrently with such dissolution and (y) the aggregate total net revenues (determined on a consolidated basis in accordance with GAAP) of all Subsidiaries dissolved pursuant to this Section 8.04(a) (other than Graybar Services, Inc. and Graybar Financial Services, Inc.) does not exceed 5% of the Borrower) may be merged, amalgamated or consolidated aggregate total net revenues of the Parent Borrower and its Subsidiaries (determined in accordance with or into, or be liquidated into, any other Credit Party; and
(iii) a Subsidiary may enter into a transaction GAAP as of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5the end of the most recently completed fiscal year).
(b) No Make any Asset Dispositions (including, without limitation, any Sale Leaseback Transaction) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of any Credit Party’s or any such Subsidiary’s business, (iii) the sale or disposition of Securitization Receivables in connection with a Securitization Transaction, or (iv) such other Asset Dispositions, provided that (A) the consideration for such assets disposed of represents the fair market value of such assets at the time of such Asset Disposition; and (B) the cumulative net book value of all Asset Dispositions by any Credit Party and any of its Subsidiaries during any single fiscal year shall make not exceed 20% of Consolidated Total Assets determined as of the end of the most recently completed fiscal year.
(c) Acquire all or substantially all of the assets or business or the majority of Voting Stock of any Person except in connection with a Permitted Acquisition, unless such Acquisition is permitted under Section 8.6.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party Dissolve, liquidate or any Subsidiary to wind up its affairs or enter into any transaction of merger merger, amalgamation or consolidation; provided, except that
however that (i) the Company may merge, amalgamate or consolidate with any Person of its Subsidiaries (other than Graybar Canada) provided that the Company shall be the continuing or surviving corporation, (ii) Graybar Canada may merge, amalgamate or consolidate with any of its Subsidiaries provided that Graybar Canada shall be the continuing or surviving corporation, (iii) any Subsidiary Guarantor may merge into the Borrower or consolidate with any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with any Credit Party in connection with a Permitted Acquisition; provided that (A) if so long as the Borrower is a party to such transaction, the Borrower Credit Party shall be the continuing or surviving entitycorporation, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiary, (yv) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated merged with or into, or be liquidated into, into any other Domestic Subsidiary or that is not a Credit Party; and , (zvi) any Foreign Subsidiary that is not a Credit Party may be merged with or into or amalgamated with any other Foreign Subsidiary that is not a Credit Party, (vii) any Credit Party or any Subsidiary of any Credit Party may merge or amalgamate with any other Person in connection with a Permitted Acquisition if such Credit Party or any Subsidiary Guarantor or such Subsidiary, as applicable, shall be the continuing or surviving corporation, (viii) any one or more of Graybar Management Services, LLC and Graybar Financial Services, Inc. may be dissolved so long as all of the assets of the Person being dissolved have been transferred to a Credit Party prior to or concurrently with such dissolution, and (ix) any Subsidiary that is not a Credit Party may be dissolved so long as (x) all of the assets of such Subsidiary have been transferred to a Credit Party prior to or concurrently with such dissolution and (y) the aggregate total net revenues (determined on a consolidated basis in accordance with GAAP) of all Subsidiaries dissolved pursuant to this Section 10.5(a) (other than Graybar Management Services, LLC and Graybar Financial Services, Inc.) does not exceed 5% of the Borrower) may be merged, amalgamated or consolidated aggregate total net revenues of the Company and its Subsidiaries (determined in accordance with or into, or be liquidated into, any other Credit Party; and
(iii) a Subsidiary may enter into a transaction GAAP as of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5the end of the most recently completed fiscal year).
(b) No Make any Asset Dispositions (including, without limitation, any Sale Leaseback Transaction) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of any Credit Party’s or any such Subsidiary’s business, (iii) the sale or disposition of Securitization Receivables or account receivables in connection with a factoring arrangement Graybar Electric Company, Inc.Private Shelf Agreement permitted hereunder and Related Assets in connection with a Securitization Transaction or factoring arrangement permitted hereunder, or (iv) such other Asset Dispositions, provided that (A) the consideration for such assets disposed of represents the fair market value of such assets at the time of such Asset Disposition; and (B) the cumulative net book value of all Asset Dispositions by any Credit Party and any of its Subsidiaries during any single fiscal year shall make not exceed 20% of Consolidated Total Assets determined as of the end of the most recently completed fiscal year.
(c) Acquire all or substantially all of the assets or business or the majority of Voting Stock of any Person except in connection with a Permitted Acquisition, unless such Acquisition is permitted under Section 8.6.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party or any Subsidiary member of the Consolidated Group to enter into any transaction of merger or consolidation, except that
(i) any Person a member of the Consolidated Group may merge into be party to a transaction of merger or consolidation with another member of the Borrower or any Credit Party in connection with a Permitted Acquisition; Consolidated Group, provided that (A) if either of the Borrower Borrowers is a party to such transaction, the a Borrower shall be the surviving entityentity (except in the case of a merger or consolidation of a Borrower with the Parent), (B) if a Guarantor is a party to such transaction and the Borrower is Borrowers are not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be mergeda party to a transaction of merger or consolidation with a Person other than a member of the Consolidated Group, amalgamated or consolidated provided that (A) the surviving entity shall be a Subsidiary and shall take such actions as may be necessary for compliance with or into, or be liquidated into, any other Credit Party or Subsidiarythe provisions of Section 7.11, (yB) any Domestic Subsidiary that is not a Credit Party may be mergedno Default or Event of Default shall exist immediately after giving effect thereto, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (zC) any Credit Party (other than the Borrower) may transaction shall otherwise be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Partypermitted under Section 8.4(b); and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5.
(b) No Credit Party member of the Consolidated Group shall make any Acquisition, unless such unless:
(i) if the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will not be a Subsidiary, the Acquisition is permitted under Section 8.6; and
(ii) if (A) the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will be a Subsidiary or (B) the Acquisition is of all or any substantial portion of the Property of another Person, the Acquisition meets the following conditions:
(I) the Person or Property which is the subject of such Acquisition shall be in the same or similar line of business (or related thereto) as the members of the Consolidated Group which are parties thereto;
(II) in the case of a merger or consolidation, and in other cases where appropriate, the board of directors or other governing body of the other Person which is the subject of the transaction of merger or consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately after giving effect to such Acquisition;
(IV) the Borrower Representative shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the covenants set forth in Section 7.10;
(V) if the Acquisition involves an interest in a partnership and a requirement that a member of the Consolidated Group be a general partner, the general partner shall be a newly formed special purpose Subsidiary;
(VI) the Credit Parties shall, and shall cause the party which is the subject of the Acquisition to, take such actions as may be necessary for compliance with the provisions of Sections 7.11;
(VII) in the case of Acquisitions of Foreign Property and Acquisitions of Capital Stock of a Foreign Person, the Total Consideration paid in connection with all such Acquisitions shall not exceed $15,000,000 in the aggregate; and
(VIII) in the case of the Acquisition of Domestic Property and Acquisitions of Capital Stock of a Domestic Person, unless the Borrower Representative has delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that the Consolidated Senior Leverage Ratio on a Pro Forma Basis after giving effect to any such Acquisition is less than 2.50:1.0, the Total Consideration paid in connection with any such Acquisition (or series of related Acquisitions) shall not exceed $25,000,000.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties Parent and the Borrowers will not permit any Credit Party or any Subsidiary member of the Consolidated Group to enter into any transaction of merger or consolidation, except that:
(i) any Person a member of the Consolidated Group may merge into be party to a transaction of merger or consolidation with another member of the Borrower or any Credit Party in connection with a Permitted AcquisitionConsolidated Group; provided that (A) if the Parent is a party to such transaction, no Borrower shall be a party to such transaction and the Parent shall be the surviving entity, (B) if any U.S. Borrower is a party to such transaction, the Parent shall not be a party to such transaction, a U.S. Borrower shall be the surviving entity, and the surviving U.S. Borrower shall expressly assume the obligations of any Borrower ceasing to exist as a result of such transaction pursuant to documents reasonably acceptable to the Administrative Agent and the Term B Facility Agent, (C) if any Foreign Borrower is a party to such transaction (other than any transaction contemplated by the foregoing clause (B)), none of the Parent, any U.S. Borrower or any Guarantor shall be a party to such transaction, a Foreign Borrower shall be the surviving entity, and the surviving Foreign Borrower shall expressly assume the obligations of any Foreign Borrower ceasing to exist as a result of such transaction pursuant to documents reasonably acceptable to the Administrative Agent and the Term B Facility Agent, (D) if a Guarantor is a party to such transaction and the no Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (CE) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.117.11 and Section 7.13;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated a party to a transaction of merger or consolidated consolidation with or into, or a Person other than a member of the Consolidated Group; provided that (A) the surviving entity shall be liquidated into, any other Credit Party or Subsidiarya Subsidiary and shall take such actions as may be necessary for compliance with the provisions of Section 7.11 and Section 7.13, (yB) any Domestic Subsidiary that is not a Credit Party may be mergedno Default or Event of Default shall exist immediately after giving effect thereto, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (zC) any Credit Party the transaction shall otherwise be permitted under Section 8.4(b) and shall be effectuated in accordance with Section 8.4(a)(i) (other than to the Borrower) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Partyextent applicable); and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.58.5 so long as such merger or consolidation would otherwise be permitted pursuant to this Section 8.4(a).
(b) No Credit Party member of the Consolidated Group shall make any Acquisition (other than the Closing Date Acquisition or the Second Amendment Acquisition), unless such unless:
(i) if the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will not be a Subsidiary, the Acquisition is permitted under Section 8.68.6 (other than by reference to this Section 8.4 (or any clause hereof)); and
(ii) if (A) the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will be a Subsidiary or (B) the Acquisition is of all or substantially all of the Property of another Person, in each case, the Acquisition meets the following conditions:
(I) the Person or Property which is the subject of such Acquisition shall be in the same or similar line of business (or related thereto) as the members of the Consolidated Group which are parties thereto;
(II) in the case of a merger or consolidation, and in other cases where appropriate, the board of directors or other governing body of the other Person which is the subject of the transaction of merger or consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately after giving effect to such Acquisition;
(IV) a Financial Officer of the Parent shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the covenants set forth in Section 7.10;
(V) if the Acquisition involves an interest in a partnership and a requirement that a member of the Consolidated Group be a general partner, the general partner shall be a newly formed special purpose Subsidiary; and
(1) the aggregate Acquisition Consideration paid for Persons that will not become Domestic Credit Parties pursuant to Section 7.11 and Property that will not become Collateral pursuant to Section 7.13 shall not exceed $10,000,000 and (2) the aggregate Acquisition Consideration paid for Persons that become Domestic Credit Parties pursuant to Section 7.11 and Property that becomes Collateral pursuant to Section 7.13 shall not exceed $50,000,000.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party or any Subsidiary member of the Consolidated Group to enter into any transaction of merger or consolidation, except that
(i) any Person a member of the Consolidated Group may merge into be party to a transaction of merger or consolidation with another member of the Borrower or any Credit Party in connection with a Permitted Acquisition; Consolidated Group, provided that (A) if the Borrower is a party to such -------- transaction, the Borrower shall be the surviving entity, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be mergeda party to a transaction of merger or consolidation with a Person other than a member of the Consolidated Group, amalgamated or consolidated provided that (A) the surviving entity shall be a Subsidiary and shall take -------- such actions as may be necessary for compliance with or into, or be liquidated into, any other Credit Party or Subsidiarythe provisions of Section 7.11, (yB) any Domestic Subsidiary that is not a Credit Party may be mergedno Default or Event of Default shall exist immediately after giving effect thereto, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (zC) any Credit Party (other than the Borrower) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Partytransaction shall otherwise constitute a Permitted Acquisition; and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5.
(b) No Credit Party member of the Consolidated Group shall make any Acquisition, unless such unless:
(i) if the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will not be a Subsidiary, the Acquisition is permitted under Section 8.6; and
(ii) if (A) the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will be a Subsidiary or (B) the Acquisition is of all or any substantial portion of the Property of another Person, the Acquisition meets the following conditions:
(I) the Person or Property which is the subject of such Acquisition shall be in the same or similar line of business (or related thereto) as the members of the Consolidated Group which are parties thereto;
(II) in the case of a merger or consolidation, and in other cases where appropriate, the board of directors or other governing body of the other Person which is the subject of the transaction of merger or consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately after giving effect to such Acquisition;
(IV) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the covenants set forth in Section 7.10;
(V) if the Acquisition involves an interest in a partnership and a requirement that a member of the Consolidated Group be a general partner, the general partner shall be a newly formed special purpose Subsidiary ;
(VI) the Credit Parties shall, and shall cause the party which is the subject of the Acquisition to, take such actions as may be necessary for compliance with the provisions of Sections 7.11;
(VII) in the case of Acquisitions of Foreign Property and Acquisitions of Capital Stock of a Foreign Person, the Total Consideration paid in connection with all such Acquisitions shall not exceed $15,000,000 in the aggregate; and
(VIII) in the case of the Acquisition of Domestic Property and Acquisitions of Capital Stock of a Domestic Person, unless the Borrower has delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that the Consolidated Senior Leverage Ratio on a Pro Forma Basis after giving effect to any such Acquisition is less than 2.50:1.0, the Total Consideration paid in connection with any such Acquisition (or series of related Acquisitions) shall not exceed $25,000,000.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party Dissolve, liquidate or any Subsidiary to wind up its affairs or enter into any transaction of merger merger, amalgamation or consolidation; provided, except that
however that (i) the Company may merge, amalgamate or consolidate with any Person of its Subsidiaries (other than Graybar Canada) provided that the Company shall be the continuing or surviving corporation, (ii) Graybar Canada may merge, amalgamate or consolidate with any of its Subsidiaries provided that Graybar Canada shall be the continuing or surviving corporation, (iii) any Subsidiary Guarantor may merge into the Borrower or consolidate with any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with any Credit Party in connection with a Permitted Acquisition; provided that (A) if so long as the Borrower is a party to such transaction, the Borrower Credit Party shall be the continuing or surviving entitycorporation, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiary, (yv) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated merged with or into, or be liquidated into, into any other Domestic Subsidiary or that is not a Credit Party; and , (zvi) any Foreign Subsidiary that is not a Credit Party may be merged with or into or amalgamated with any other Foreign Subsidiary that is not a Credit Party, (vii) any Credit Party or any Subsidiary of any Credit Party may merge or amalgamate with any other Person in connection with a Permitted Acquisition if such Credit Party or any Subsidiary Guarantor or such Subsidiary, as applicable, shall be the continuing or surviving corporation, (viii) any one or more of Graybar Services, Inc. and Graybar Financial Services, Inc. may be dissolved so long as all of the assets of the Person being dissolved have been transferred to a Credit Party prior to or concurrently with such dissolution, and (ix) any Subsidiary that is not a Credit Party may be dissolved so long as (x) all of the assets of such Subsidiary have been transferred to a Credit Party prior to or concurrently with such dissolution and (y) the aggregate total net revenues (determined on a consolidated basis in accordance with GAAP) of all Subsidiaries dissolved pursuant to this Section 10.5(a) (other than Graybar Services, Inc. and Graybar Financial Services, Inc.) does not exceed 5% of the Borrower) may be merged, amalgamated or consolidated aggregate total net revenues of the Company and its Subsidiaries (determined in accordance with or into, or be liquidated into, any other Credit Party; and
(iii) a Subsidiary may enter into a transaction GAAP as of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5the end of the most recently completed fiscal year).
(b) No Make any Asset Dispositions (including, without limitation, any Sale Leaseback Transaction) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of any Credit Party’s or any such Subsidiary’s business, (iii) the sale or disposition of Securitization Receivables in connection with a Securitization Transaction, or (iv) such other Asset Dispositions, provided that (A) the consideration for such assets disposed of represents the fair market value of such assets at the time of such Asset Disposition; and (B) the cumulative net book value of all Asset Dispositions by any Credit Party and any of its Subsidiaries during any single fiscal year shall make not exceed 20% of Consolidated Total Assets determined as of the end of the most recently completed fiscal year.
(c) Acquire all or substantially all of the assets or business or the majority of Voting Stock of any Person except in connection with a Permitted Acquisition, unless such Acquisition is permitted under Section 8.6.”
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party Dissolve, liquidate or any Subsidiary to wind up its affairs or enter into any transaction of merger merger, amalgamation or consolidation; provided, except that
however that (i) the Company may merge, amalgamate or consolidate with any Person of its Subsidiaries (other than Graybar Canada) provided that the Company shall be the continuing or surviving corporation, (ii) Graybar Canada may merge, amalgamate or consolidate with any of its Subsidiaries provided that Graybar Canada shall be the continuing or surviving corporation, (iii) any Subsidiary Guarantor may merge into the Borrower or consolidate with any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Credit Party may merge, amalgamate or consolidate with any Credit Party in connection with a Permitted Acquisition; provided that (A) if so long as the Borrower is a party to such transaction, the Borrower Credit Party shall be the continuing or surviving entitycorporation, (B) if a Guarantor is a party to such transaction and the Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiary, (yv) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated merged with or into, or be liquidated into, into any other Domestic Subsidiary or that is not a Credit Party; and , (zvi) any Foreign Subsidiary that is not a Credit Party may be merged with or into or amalgamated with any other Foreign Subsidiary that is not a Credit Party, (vii) any Credit Party or any Subsidiary of any Credit Party may merge or amalgamate with any other Person in connection with a Permitted Acquisition if such Credit Party or any Subsidiary Guarantor or such Subsidiary, as applicable, shall be the continuing or surviving corporation, (viii) any one or more of Graybar Management Services, LLC and Graybar Financial Services, Inc. may be dissolved so long as all of the assets of the Person being dissolved have been transferred to a Credit Party prior to or concurrently with such dissolution, and (ix) any Subsidiary that is not a Credit Graybar Electric Company, Inc. Party may be dissolved so long as (x) all of the assets of such Subsidiary have been transferred to a Credit Party prior to or concurrently with such dissolution and (y) the aggregate total net revenues (determined on a consolidated basis in accordance with GAAP) of all Subsidiaries dissolved pursuant to this Section 10.5(a) (other than Graybar Management Services, LLC and Graybar Financial Services, Inc.) does not exceed 5% of the Borrower) may be merged, amalgamated or consolidated aggregate total net revenues of the Company and its Subsidiaries (determined in accordance with or into, or be liquidated into, any other Credit Party; and
(iii) a Subsidiary may enter into a transaction GAAP as of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5the end of the most recently completed fiscal year).
(b) No Make any Asset Dispositions (including, without limitation, any Sale Leaseback Transaction) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of any Credit Party’s or any such Subsidiary’s business, (iii) the sale or disposition of Securitization Receivables or account receivables in connection with a factoring arrangement permitted hereunder and Related Assets in connection with a Securitization Transaction or factoring arrangement permitted hereunder, or (iv) such other Asset Dispositions, provided that (A) the consideration for such assets disposed of represents the fair market value of such assets at the time of such Asset Disposition; and (B) the cumulative net book value of all Asset Dispositions by any Credit Party and any of its Subsidiaries during any single fiscal year shall make not exceed 20% of Consolidated Total Assets determined as of the end of the most recently completed fiscal year.
(c) Acquire all or substantially all of the assets or business or the majority of Voting Stock of any Person except in connection with a Permitted Acquisition, unless such Acquisition is permitted under Section 8.6.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party or any Subsidiary member of the Consolidated Group to enter into any transaction of merger or consolidation, except that:
(i) any Person a member of the Consolidated Group may merge into be party to a transaction of merger or consolidation with another member of the Borrower or any Credit Party in connection with a Permitted AcquisitionConsolidated Group; provided that (A) if the Parent is a party to such transaction, no Borrower shall be a party to such transaction and the Parent shall be the surviving entity, (B) if any U.S. Borrower is a party to such transaction, the Parent shall not be a party to such transaction, a U.S. Borrower shall be the surviving entity, and the surviving U.S. Borrower shall expressly assume the obligations of any Borrower ceasing to exist as a result of such transaction pursuant to documents reasonably acceptable to the Administrative Agent and the Term B Facility Agent, (C) if any Foreign Borrower is a party to such transaction (other than any transaction contemplated by the foregoing clause (B)), none of the Parent, any U.S. Borrower or any Guarantor shall be a party to such transaction, a Foreign Borrower shall be the surviving entity, and the surviving Foreign Borrower shall expressly assume the obligations of any Foreign Borrower ceasing to exist as a result of such transaction pursuant to documents reasonably acceptable to the Administrative Agent and the Term B Facility Agent, (D) if a Guarantor is a party to such transaction and the no Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (CE) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.117.11 and Section 7.13;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated a party to a transaction of merger or consolidated consolidation with or into, or a Person other than a member of the Consolidated Group; provided that (A) the surviving entity shall be liquidated into, any other Credit Party or Subsidiarya Subsidiary and shall take such actions as may be necessary for compliance with the provisions of Section 7.11 and Section 7.13, (yB) any Domestic Subsidiary that is not a Credit Party may be mergedno Default or Event of Default shall exist immediately after giving effect thereto, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (zC) any Credit Party the transaction shall otherwise be permitted under Section 8.4(b) and shall be effectuated in accordance with Section 8.4(a)(i) (other than to the Borrower) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Partyextent applicable); and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.58.5 so long as such merger or consolidation would otherwise be permitted pursuant to this Section 8.4(a).
(b) No Credit Party member of the Consolidated Group shall make any Acquisition (other than the Closing Date Acquisition or the Second Amendment Acquisition), unless such unless:
(i) if the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will not be a Subsidiary, the Acquisition is permitted under Section 8.68.6 (other than by reference to this Section 8.4 (or any clause hereof)); and
(ii) if (A) the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will be a Subsidiary or (B) the Acquisition is of all or substantially all of the Property of another Person, in each case, the Acquisition meets the following conditions:
(I) the Person or Property which is the subject of such Acquisition shall be in the same or similar line of business (or related thereto) as the members of the Consolidated Group which are parties thereto;
(II) in the case of a merger or consolidation, and in other cases where appropriate, the board of directors or other governing body of the other Person which is the subject of the transaction of merger or consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately after giving effect to such Acquisition;
(IV) a Financial Officer of the Parent shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the covenants set forth in Section 7.10;
(V) if the Acquisition involves an interest in a partnership and a requirement that a member of the Consolidated Group be a general partner, the general partner shall be a newly formed special purpose Subsidiary; and
(VI) the aggregate Acquisition Consideration paid for Persons that will not become Domestic Credit Parties pursuant to Section 7.11 and Property that will not become Collateral pursuant to Section 7.13 shall not exceed an amount equal to the greater of (x) $100,000,000, and (y) 3% of Consolidated Total Assets (determined as of the end of the most recent fiscal quarter of the Parent for which financial statements have been delivered pursuant to Section 7.1(a) or (b)).
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party or any Subsidiary member of the Consolidated Group to enter into any transaction of merger or consolidation, except that
(i) any Person a member of the Consolidated Group may merge into be party to a transaction of merger or consolidation with another member of the Borrower or any Credit Party in connection with a Permitted Acquisition; Consolidated Group, provided that (A) if the any Borrower is a party to such transaction, the a Borrower shall be the surviving entityentity (except in the case of a merger or consolidation of a Borrower with the Parent), (B) if a Guarantor is a party to such transaction and the Borrower is Borrowers are not a party to such transaction, a Guarantor shall be the surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be mergeda party to a transaction of merger or consolidation with a Person other than a member of the Consolidated Group, amalgamated or consolidated provided that (A) the surviving entity shall be a Subsidiary and shall take such actions as may be necessary for compliance with or into, or be liquidated into, any other Credit Party or Subsidiarythe provisions of Section 7.11, (yB) any Domestic Subsidiary that is not a Credit Party may be mergedno Default or Event of Default shall exist immediately after giving effect thereto, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (zC) any Credit Party (other than the Borrower) may transaction shall otherwise be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Partypermitted under Section 8.4(b); and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5.
(b) No Credit Party member of the Consolidated Group shall make any Acquisition, unless such unless:
(i) if the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will not be a Subsidiary, the Acquisition is permitted under Section 8.6; and
(ii) if (A) the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will be a Subsidiary or (B) the Acquisition is of all or substantially all of the Property of another Person, the Acquisition meets the following conditions:
(I) the Person or Property which is the subject of such Acquisition shall be in the same or similar line of business (or related thereto) as the members of the Consolidated Group which are parties thereto;
(II) in the case of a merger or consolidation, and in other cases where appropriate, the board of directors or other governing body of the other Person which is the subject of the transaction of merger or consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately after giving effect to such Acquisition;
(IV) the Borrower Representative shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the covenants set forth in Section 7.10;
(V) if the Acquisition involves an interest in a partnership and a requirement that a member of the Consolidated Group be a general partner, the general partner shall be a newly formed special purpose Subsidiary; and
(VI) the Credit Parties shall, and shall cause the party which is the subject of the Acquisition to, take such actions as may be necessary for compliance with the provisions of Section 7.11.
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Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party or any Subsidiary member of the Consolidated Group to enter into any transaction of merger or consolidation, except that
: (i) any Person a member of the Consolidated Group may merge into be party to a transaction of merger or consolidation with another member of the Borrower or any Credit Party in connection with a Permitted AcquisitionConsolidated Group; provided that (A) if the Parent is a party to such transaction, no Borrower shall be a party to such transaction and the Parent shall be the surviving entity, (B) if any U.S. Borrower is a party to such transaction, the Parent shall not be a party to such transaction, a U.S. Borrower shall be the surviving entity, and the surviving U.S. Borrower shall expressly assume the obligations of any Borrower ceasing to exist as a result of such transaction pursuant to documents reasonably acceptable to the Administrative Agent, (C) if any Foreign Borrower is a party to such transaction (other than any transaction contemplated by the foregoing clause (B)), none of the Parent, any U.S. Borrower or any Guarantor shall be a party to such transaction, a Foreign Borrower shall be the surviving entity, and the surviving Foreign Borrower shall expressly assume the obligations of any Foreign Borrower ceasing to exist as a result of such transaction pursuant to documents reasonably acceptable to the Administrative Agent, (D) if a Guarantor is a party to such transaction and the no Borrower is not a party to such transaction, a Guarantor shall be the surviving entity, and (CE) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
; (ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiary, (y) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated with or into, or be liquidated into, any Domestic Subsidiary or Credit Party; and (z) any Credit Party (other than the Borrower) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party; and
(iii) a Subsidiary may enter into be a party to a transaction of merger or consolidation in connection with an Asset Disposition a Person other than a member of the Consolidated Group; provided that (A) the surviving entity shall be a Subsidiary and shall take such actions as may be necessary for compliance with respect to such Subsidiary the provisions of Section 7.11, (B) no Default or Event of Default shall exist immediately after giving effect thereto, and (C) the transaction shall otherwise be permitted under Section 8.5.8.4(b) and shall be effectuated in accordance with Section 8.4(a)(i) (to the extent applicable); and
(b) No Credit Party member of the Consolidated Group shall make any Acquisition (other than the Closing Date Acquisition), unless such unless: (i) if the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will not be a Subsidiary, the Acquisition is permitted under Section 8.68.6 (other than by reference to this Section 8.4 (or any clause hereof)); and (ii) if (A) the Acquisition is of Capital Stock of another Person and after giving effect to the Acquisition the Person that is the subject of the Acquisition will be a Subsidiary or (B) the Acquisition is of all or substantially all of the Property of another Person, in each case, the Acquisition meets the following conditions: (I) the Person or Property which is the subject of such Acquisition shall be in the same or similar line of business (or related thereto) as the members of the Consolidated Group which are parties thereto; (II) in the case of a merger or consolidation, and in other cases where appropriate, the board of directors or other governing body of the other Person which is the subject of the transaction of merger or consolidation shall have approved such Acquisition; (III) no Default or Event of Default shall exist immediately after giving effect to such Acquisition; (IV) a Financial Officer of the Parent shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Credit Parties shall be in compliance with all of the covenants set forth in Section 7.10; (V) if the Acquisition involves an interest in a partnership and a requirement that a member of the Consolidated Group be a general partner, the general partner shall be a newly formed special purpose Subsidiary; and (VI) the Credit Parties shall, and shall cause the party which is the subject of the Acquisition to, take such actions as may be necessary for compliance with the provisions of Section 7.11.
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Consolidation, Merger, Sale or Purchase of Assets, etc. (a) The Credit Parties will not permit any Credit Party Dissolve, liquidate or any Subsidiary to wind up their affairs or enter into any transaction of merger merger, amalgamation or consolidation; provided, except that
however that (i) the Parent Borrower may merge, amalgamate or consolidate with any Person may merge into of its respective Subsidiaries (other than the Borrower or any Credit Party in connection with a Permitted Acquisition; Canadian Borrower) provided that (A) if the Borrower is a party to such transaction, the Parent Borrower shall be the continuing or surviving entitycorporation, (Bii) if a the Canadian Borrower may merge, amalgamate or consolidate with any of its respective Subsidiaries provided that the Canadian Borrower shall be the continuing or surviving corporation, (iii) any Subsidiary Guarantor is a party to such transaction and the Borrower may merge or consolidate with any other Subsidiary Guarantor, (iv) any Subsidiary that is not a party to such transactionCredit Party may merge, a Guarantor amalgamate or consolidate with any Credit Party so long as the Credit Party shall be the continuing or surviving entity, and (C) in all other cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall be the surviving entity and such Domestic Subsidiary shall take such actions as may be necessary for compliance with the provisions of Section 7.11;
(ii) any (x) Subsidiary that is a Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party or Subsidiarycorporation, (yv) any Domestic Subsidiary that is not a Credit Party may be merged, amalgamated or consolidated merged with or into, or be liquidated into, into any other Domestic Subsidiary or that is not a Credit Party; and , (zvi) any Foreign Subsidiary that is not a Credit Party may be merged with or into or amalgamated with any other Foreign Subsidiary that is not a Credit Party, (vii) any Credit Party or any Subsidiary of any Credit Party may merge or amalgamate with any other Person in connection with a Permitted Acquisition if such Credit Party or such Subsidiary, as applicable, shall be the continuing or surviving corporation, (viii) any one or more of Graybar Services, Inc. and Graybar Financial Services, Inc. may be dissolved so long as all of the assets of the Person being dissolved have been transferred to a Domestic Credit Party prior to or concurrently with such dissolution and (ix) any Subsidiary that is not a Credit Party may be dissolved so long as (x) all of the assets of such Subsidiary have been transferred to a Domestic Credit Party prior to or concurrently with such dissolution and (y) the aggregate total net revenues (determined on a consolidated basis in accordance with GAAP) of all Subsidiaries dissolved pursuant to this Section 8.04(a) (other than Graybar Services, Inc. and Graybar Financial Services, Inc.) does not exceed 5% of the Borroweraggregate total net revenues (determined in accordance with GAAP) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Credit Party; and
(iii) a Subsidiary may enter into a transaction of merger or consolidation in connection with an Asset Disposition with respect to such Subsidiary permitted under Section 8.5the Parent Borrower and its Subsidiaries.
(b) No Make any Asset Dispositions (including, without limitation, any Sale Leaseback Transaction) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of any Credit Party’s or any such Subsidiary’s business, (iii) the sale or disposition of Securitization Receivables in connection with a Securitization Transaction, or (iv) such other Asset Dispositions, provided that (A) the consideration for such assets disposed of represents the fair market value of such assets at the time of such Asset Disposition; and (B) the cumulative net book value of all Asset Dispositions by any Credit Party and any of its Subsidiaries during any single fiscal year shall make not exceed 15% of the Consolidated Total Assets determined as of the end of the most recently completed fiscal year.
(c) Acquire all or substantially all of the assets or business or the majority of Voting Stock of any Person except in connection with a Permitted Acquisition, unless such Acquisition is permitted under Section 8.6.
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