Common use of Mergers and Acquisitions Clause in Contracts

Mergers and Acquisitions. The Loan Parties shall not, and shall ensure their Subsidiaries do not, liquidate or dissolve; or enter into any consolidation, merger or other combination in which the stockholders of the Loan Parties or their Subsidiaries (as the case may be) immediately prior to such transaction own less than 50% of the voting stock of such Loan Party or of such Subsidiary (as the case may be) immediately after giving effect to such transaction or related series of such transactions; or sell all, or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger or consolidation, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity to the Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; (C) immediately after giving effect to such merger, consolidation or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurred; and (D) the credit risk to the Lenders, as determined in its sole discretion, of the Surviving Entity shall not be increased. In determining whether the proposed merger, consolidation or sale of assets, would result in an increased credit risk, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership resulting from additional bona fide private equity financings by financial investors shall be permitted so long as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinder.

Appears in 2 contracts

Samples: Loan Agreement (Israel Technology Acquisition Corp.), Loan Agreement (Israel Technology Acquisition Corp.)

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Mergers and Acquisitions. The Loan Parties shall notNone of the Borrowers will, nor will permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except the merger or consolidation of, or asset or stock acquisitions between existing Subsidiaries, mergers of existing Subsidiaries with and into any of the Borrowers, and shall ensure their Subsidiaries do not, liquidate asset or dissolve; or enter into stock acquisitions by any consolidation, merger or other combination in which the stockholders of the Loan Parties or their Subsidiaries (as the case may be) immediately prior to such transaction own less than 50% Borrowers of the voting stock or assets of such Loan Party existing Subsidiaries, and except as otherwise provided in this §9.5. 1. The Borrowers may purchase or of such Subsidiary (as the case may be) immediately after giving effect to such transaction or related series of such transactions; or sell all, or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell otherwise acquire all or substantially all its of the assets so long as: or stock or other equity interests of any other Person provided that: (Aa) the entity that results from such merger or consolidationBorrowers are in current compliance with and, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity to the Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; (C) immediately after giving effect to the proposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in compliance with all of the covenants in §9 hereof as if the transaction occurred on the first day of the period of measurement; provided that, to the extent such mergeracquisition will be included as an Acquired Business, consolidation or sale the Administrative Agent shall have received an Officer’s Certificate certifying compliance with §§10.1-10.3 on a pro forma historical combined basis as if the transaction occurred on the first day of assetsthe period of measurement and the related documentation showing the estimated calculations (subject to any adjustments) made in determination thereof; (b) at the time of such acquisition, no Default or Event of Default orhas occurred and is continuing, event which with the lapse of time and such acquisition will not otherwise create a Default or giving of notice or both, would result in an Event of Default hereunder; (c) the business to be acquired is similar to the business conducted by BGI, or businesses reasonably related or incidental thereto; (d) not later than seven (7) days prior to the proposed acquisition date, notice of any proposed acquisition with an aggregate consideration (including assumption of indebtedness) of more than $30,000,000, together with all information reasonably requested by the Administrative Agent with respect to such acquisition (including without limitation, historical financial statements and due diligence summaries) shall have occurred; been furnished to the Administrative Agent; (e) the board of directors and (Dif required by applicable law) the credit risk to shareholders, or the Lenders, as determined in its sole discretionequivalent thereof, of the Surviving Entity business to be acquired has approved such acquisition; (f) if such acquisition is made by a merger, BGI (or a wholly-owned Subsidiary of BGI) shall be the surviving entity; and (g) the total consideration to be paid in connection with any acquisition or series of related acquisitions, in the form of cash and assumption of debt with respect to any such acquisition or series of related acquisitions, shall not be increased. In determining whether exceed $200,000,000 without the proposed merger, consolidation or sale of assets, would result in an increased credit risk, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result consent of the transaction. Notwithstanding anything to Administrative Agent and the contrary in this Section 7.11: (a) changes in ownership resulting from additional bona fide private equity financings by financial investors shall be permitted so long as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Required Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinder.

Appears in 2 contracts

Samples: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc), Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)

Mergers and Acquisitions. The Loan Parties shall notConsolidate or merge into or with any Person, and shall ensure their Subsidiaries do notor make any Acquisition, liquidate or dissolve; or enter into any consolidation, merger or other combination in which the stockholders binding agreement to do any of the Loan Parties or their Subsidiaries (as foregoing which is not contingent on obtaining the case may be) immediately prior to such transaction own less than 50% consent of the voting stock of Required Lenders, or permit any Material Subsidiary so to do, except as follows: (a) any Subsidiary may merge into or be Acquired by a Loan Party, provided that (i) such Loan Party is the survivor or of such Subsidiary transferee thereof (as and in a transaction involving the case may beCompany, the Company is the survivor or transferee thereof), and (ii) immediately before and after giving effect thereto no Default or Event of Default shall or would exist; (b) any Subsidiary may merge into or be Acquired by another Subsidiary; (c) Acquisitions of one or more Operating Entities or Properties, provided that immediately before and after giving effect to each such Acquisition under this Section 6.04(c), (1) no Default shall or would exist, and (2) all of the representations and warranties contained in Article III (other than Sections 3.04(a) and 3.12) shall be true and correct as if then made (except to the extent such representations and warranties refer to an earlier date, in which case they shall be true and correct as of such date); and (d) any Subsidiary may merge into or be Acquired by any Person (other than a Loan Party or Subsidiary), provided that (i) such transaction or related series of such transactions; or sell all, or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as is not prohibited by Section 6.03 and (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger or consolidation, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity to the Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; (Cii) immediately before and after giving effect to such merger, consolidation thereto no Default or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurred; and (D) the credit risk to the Lenders, as determined in its sole discretion, of the Surviving Entity shall not be increased. In determining whether the proposed merger, consolidation or sale of assets, would result in an increased credit risk, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership resulting from additional bona fide private equity financings by financial investors shall be permitted so long as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderexist.

Appears in 2 contracts

Samples: Credit Agreement (Fiserv Inc), Credit Agreement (Fiserv Inc)

Mergers and Acquisitions. The Loan Parties shall notConsolidate or merge into or with any Person, or make any Acquisition or consummate a Division as the Dividing Person, or permit any Material Subsidiary so to do, except as follows: (a) any Subsidiary may consolidate or merge with or into, or be Acquired by, the Company; provided that (i) the Company is the survivor or transferee thereof, and shall ensure their Subsidiaries do not, liquidate or dissolve; or enter into any consolidation, merger or other combination in which the stockholders of the Loan Parties or their Subsidiaries (as the case may beii) immediately prior before and after giving effect thereto no Default or Event of Default shall or would exist; (b) any Subsidiary may consolidate or merge with or into, or be Acquired by, another Subsidiary; (c) Acquisitions of one or more Operating Entities or Properties; provided that either (i) if such Acquisition constitutes a Limited Condition Acquisition, such Acquisition shall be subject to such transaction own less than 50% the conditions set forth in the proviso contained in the fifth sentence of the voting stock of such Loan Party Section 2.22, or of such Subsidiary (as the case may beii) immediately before and after giving effect to each such transaction or related series of such transactions; or sell allAcquisition under this Section 6.04(c), or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger no Default shall or consolidationwould exist, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity representations and warranties contained in Article III (other than Sections 3.04(a), 3.12 and 3.16) shall be true and correct as if then made (except to the Lenders extent such representations and warranties refer to an earlier date, in which case they shall be guaranteed true and correct as of such date); (d) any Subsidiary may consolidate or merge with or into, or be Acquired by, any Person (other than a Subsidiary); provided that (i) such transaction is not prohibited by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; Section 6.03 and (Cii) immediately before and after giving effect to such merger, consolidation thereto no Default or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurredor would exist; and and (De) any Subsidiary may consummate a Division as a Dividing Person if, immediately upon the credit risk to the Lenders, as determined in its sole discretion, consummation of the Surviving Entity shall Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not be increased. In determining whether so held by one or more Subsidiaries, such Division, in the proposed merger, consolidation or sale of assetsaggregate, would otherwise result in an increased credit riska Disposition permitted by Section 6.03; provided that, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership Agreement, any Subsidiary which is a Division Successor resulting from additional bona fide private equity financings by financial investors a Division of assets of a Material Subsidiary shall not cease to be permitted so long a Material Subsidiary solely as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance a result of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderapplicable Division.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Fiserv Inc), Term Loan Credit Agreement (Fiserv Inc)

Mergers and Acquisitions. The Loan Parties shall notConsolidate or merge into or with any Person, and shall ensure their Subsidiaries do notor make any Acquisition, liquidate or dissolve; or enter into any consolidation, merger or other combination in which the stockholders binding agreement to do any of the Loan Parties foregoing which is not contingent on obtaining the consent of the Required Lenders, or their Subsidiaries permit any Subsidiary so to do, except any one or more of the following: (as a) Capital Expenditures permitted by Section 8.6, (b) any Subsidiary may merge into or be acquired by the Borrower, provided that the Borrower is the survivor thereof, any Subsidiary may merge into or be acquired by a Guarantor, provided that the Guarantor is the survivor thereof, and any Subsidiary (other than a Guarantor) may merge into or be acquired by another Subsidiary (other than a Guarantor), in each case may bereferred to in this clause (b) provided that immediately before and after giving effect thereto no Default or Event of Default shall or would exist, (c) Acquisitions of Investments permitted by Section 8.5, (d) Intercompany Acquisitions, provided that, immediately before and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing, and (e) other Acquisitions by the Borrower or any Guarantor, in either case of one or more Operating Entities (each an "Additional Permitted Acquisition"), provided that (i) immediately prior before and after giving effect to each such transaction own less than 50% Acquisition no Default or Event of the voting stock of such Loan Party Default shall or of such Subsidiary would exist, 62 68 (as the case may beii) immediately after giving effect to each such transaction Acquisition, all of the representations and warranties contained in Section 4 shall be true and correct as if then made, (iii) the aggregate consideration paid in connection with each such Acquisition (or related series of related transactions) shall not exceed $5,000,000, (iv) the aggregate consideration paid for all such transactions; Acquisitions during each period of four consecutive fiscal quarters (i) ending on or sell allafter the Effective Date and on or before June 30, or substantially all1998, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactionsshall not exceed $5,000,000, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Dateand (ii) ending after June 30, so long as 1998, shall not exceed $7,500,000, (A)-(Bv) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: such Operating Entity (A) if a Person, shall be organized under the entity that results from such merger or consolidation, or proposes to purchase all, or substantially all, laws of the Company’s United States of America or the Parent Guarantor’s assets (as applicableany State thereof, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations shall not have any place of business (other than a foreign sales office), or tangible assets having a fair market value in excess of $250,000, located outside of the Surviving Entity to the Lenders United States of America, and (vi) no Stock issued by or other debt or equity interests in such Operating Entity, if any, shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% registered under the Securities Act of the voting stock of the Surviving Entity; (C) immediately after giving effect to such merger, consolidation or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurred; and (D) the credit risk to the Lenders1933, as determined in its sole discretion, of the Surviving Entity shall not be increased. In determining whether the proposed merger, consolidation or sale of assets, would result in an increased credit risk, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership resulting from additional bona fide private equity financings by financial investors shall be permitted so long as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderamended.

Appears in 1 contract

Samples: Credit Agreement (Video Services Corp)

Mergers and Acquisitions. The Loan Parties shall notConsolidate or merge into or with any Person, and shall ensure their Subsidiaries do not, liquidate or dissolve; make any Acquisition or enter into any consolidation, merger or other combination in which the stockholders of the Loan Parties or their Subsidiaries (consummate a Division as the case Dividing Person, or permit any Material Subsidiary so to do, except as follows: (a) any Subsidiary may beconsolidate or merge with or into, or be Acquired by, a Loan Party,; provided that (i) immediately prior to such transaction own less than 50% of the voting stock of such Loan Party is the survivor or of such Subsidiary transferee thereof (as and in a transaction involving the case may beCompany, the Company is the survivor or transferee thereof), and (ii) immediately before and after giving effect thereto no Default or Event of Default shall or would exist; (b) any Subsidiary may consolidate or merge with or into, or be Acquired by, another Subsidiary; (c) Acquisitions of one or more Operating Entities or Properties,; provided that either (i) if such Acquisition constitutes a Limited Conditionality Acquisition, such Acquisition shall be subject to the conditions set forth in the proviso contained in the fifth sentence of Section 2.20 or (ii) immediately before and after giving effect to each such Acquisition under this Section 6.04(c), (1A) no Default shall or would exist, and (2B) all of the representations and warranties contained in Article III (other than Sections 3.04(a), 3.12 and 3.18) shall be true and correct as if then made (except to the extent such representations and warranties refer to an earlier date, in which case they shall be true and correct as of such date); and (d) any Subsidiary may consolidate or merge with or into, or be Acquired by, any Person (other than a Loan Party or a Subsidiary),; provided that (i) such transaction or related series of such transactions; or sell all, or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as is not prohibited by Section 6.03 and (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger or consolidation, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity to the Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; (Cii) immediately before and after giving effect to such merger, consolidation thereto no Default or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurredor would exist.; and and (De) any Subsidiary may consummate a Division as a Dividing Person if, immediately upon the credit risk to the Lenders, as determined in its sole discretion, consummation of the Surviving Entity shall Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not be increased. In determining whether so held by one or more Subsidiaries, such Division, in the proposed merger, consolidation or sale of assetsaggregate, would otherwise result in an increased credit riska Disposition permitted by Section 6.03; provided that, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership Agreement, any Subsidiary which is a Division Successor resulting from additional bona fide private equity financings by financial investors a Division of assets of a Material Subsidiary shall not cease to be permitted so long a Material Subsidiary solely as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance a result of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderapplicable Division.

Appears in 1 contract

Samples: Credit Agreement (Fiserv Inc)

Mergers and Acquisitions. The Loan Parties shall notConsolidate or merge into or with any Person, and shall ensure their Subsidiaries do not, liquidate or dissolve; make any Acquisition or enter into any consolidation, merger or other combination in which the stockholders of the Loan Parties or their Subsidiaries (consummate a Division as the case Dividing Person, or permit any Material Subsidiary so to do, except as follows: (a) any Subsidiary may beconsolidate or merge with or into, or be Acquired by, a Loan Party; provided that (i) immediately prior to such transaction own less than 50% of the voting stock of such Loan Party is the survivor or of such Subsidiary transferee thereof (as and in a transaction involving the case may beCompany, the Company is the survivor or transferee thereof), and (ii) immediately before and after giving effect thereto no Default or Event of Default shall or would exist; (b) any Subsidiary may consolidate or merge with or into, or be Acquired by, another Subsidiary; (c) Acquisitions of one or more Operating Entities or Properties; provided that either (i) if such Acquisition constitutes a Limited Conditionality Acquisition, such Acquisition shall be subject to the conditions set forth in the proviso contained in the fifth sentence of Section 2.20 or (ii) immediately before and after giving effect to each such transaction or related series of such transactions; or sell allAcquisition under this Section 6.04(c), or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger no Default shall or consolidationwould exist, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity representations and warranties contained in Article III (other than Sections 3.04(a), 3.12 and 3.18) shall be true and correct as if then made (except to the Lenders extent such representations and warranties refer to an earlier date, in which case they shall be guaranteed true and correct as of such date); (d) any Subsidiary may consolidate or merge with or into, or be Acquired by, any Person (other than a Loan Party or a Subsidiary); provided that (i) such transaction is not prohibited by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; Section 6.03 and (Cii) immediately before and after giving effect to such merger, consolidation thereto no Default or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurredor would exist; and and (De) any Subsidiary may consummate a Division as a Dividing Person if, immediately upon the credit risk to the Lenders, as determined in its sole discretion, consummation of the Surviving Entity shall Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not be increased. In determining whether so held by one or more Subsidiaries, such Division, in the proposed merger, consolidation or sale of assetsaggregate, would otherwise result in an increased credit riska Disposition permitted by Section 6.03; provided that, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership Agreement, any Subsidiary which is a Division Successor resulting from additional bona fide private equity financings by financial investors a Division of assets of a Material Subsidiary shall not cease to be permitted so long a Material Subsidiary solely as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance a result of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderapplicable Division.

Appears in 1 contract

Samples: Credit Agreement (Fiserv Inc)

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Mergers and Acquisitions. The Loan Parties Neither the Company nor any of its Subsidiaries shall not, and shall ensure their Subsidiaries do not, liquidate become a party to any merger or dissolve; or enter into any consolidation, merger or agree to or effect any asset acquisition or stock acquisition; PROVIDED, HOWEVER, the Company shall be permitted to (a) consummate the acquisition of Starlight Networks, Inc. (the "Starlight Acquisition") so long as (i) no Default or Event of Default has occurred and is continuing or would exist as a result of such acquisition; (ii) the Company has demonstrated to the Agent satisfaction on a pro forma basis with all the financial covenants contained in Article 6 hereof both immediately prior to and after giving effect to such acquisition; (iii) the Company has not incurred any Indebtedness in connection with such acquisition except as expressly permitted by Section 7.6; (iv) the Person being acquired has no liens, security interests or other combination in which encumbrances on its assets at the stockholders time of the Loan Parties consummation of such acquisition, except as otherwise permitted by Section 7.1 hereof; and (v) the aggregate consideration to be paid for such acquisition shall not exceed, in the aggregate, (1) 1,600,000 shares of the common stock of the Company and (2) $3,000,000 in cash; and (b) consummate other acquisitions of the assets or their Subsidiaries stock of any Person so long as (i) such Person is in the same or a similar line of business as the Company; (ii) no Default or Event of Default has occurred and is continuing or would exist as a result of such acquisition; (iii) the Company has demonstrated to the Agent satisfaction on a pro forma basis with all the financial covenants contained in Article 6 hereof both immediately prior to and after giving effect to such acquisition; (iv) the Company has not incurred any Indebtedness in connection with such merger, consolidation or acquisition except as expressly permitted by Section 7.6; (v) the Person being acquired has no liens, security interests or other encumbrances on its assets at the time of the consummation of such merger, consolidation or acquisition, as the case may be) immediately prior to such transaction own less than 50% of the voting stock of such Loan Party or of such Subsidiary (as the case may be) immediately after giving effect to such transaction or related series of such transactions; or sell all, or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger or consolidation, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption otherwise permitted by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity to the Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; (C) immediately after giving effect to such merger, consolidation or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurredSection 7.1 hereof; and (Dvi) the credit risk aggregate consideration to be paid for all acquisitions (other than the Lenders, as determined in its sole discretion, Starlight Acquisition) from the date hereof through the term of the Surviving Entity this Credit Agreement shall not be increased. In determining whether the proposed merger, consolidation or sale of assets, would result in an increased credit risk, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership resulting from additional bona fide private equity financings by financial investors shall be permitted so long as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderexceed $5,000,000.

Appears in 1 contract

Samples: Secured Revolving Credit Agreement (Picturetel Corp)

Mergers and Acquisitions. The Loan Parties shall notWithout the prior written consent of Lender, and shall ensure their Subsidiaries do not, liquidate or dissolve; or enter into any consolidation, merger or other combination in which the stockholders consolidation with or acquire all of capital stock of or all or substantially all of the Loan Parties assets of any Person (whether in one transaction or their in a series of transactions), except that: (a) any Guarantor may merge with Borrower, provided that Borrower is the surviving corporation; (b) any Guarantor may merge with any Guarantor; (c) Borrower or any of its Subsidiaries may merge with or acquire all of the capital stock of or all or substantially all of the assets of a Person, provided that: (as the case may be1) immediately prior to such transaction own less than 50% of and immediately after giving effect thereto, no Default (including under Section 8.07 and including under Article 7, assuming that the voting stock of such Loan Party or of such Subsidiary (as the case may be) financial restrictions set forth in Article 7 are applied immediately after giving effect to such transaction or related series of such transactions; or sell all, or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant acquisition) shall exist; (2) prior to the Merger Agreement as in effect on the Closing Date, so long as (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger or consolidation, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity to the Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; (C) immediately after giving effect thereto, the amount available for Advances under Section 2.01 is equal to or greater than $5,000,000; (3) the cost of such mergermerger or acquisition as required to be reported on the books of Borrower or such Subsidiary in accordance with generally accepted accounting principles does not exceed $750,000; (4) the cost of such merger or acquisition, consolidation plus the cost of all prior mergers or sale acquisitions made in accordance with this Section 9.06(c) during the same fiscal year, does not exceed $2,000,000; (5) any Indebtedness issued in connection with such acquisition shall be Subordinated Indebtedness or otherwise permitted under this Agreement; and (6) if such Person is acquired through the formation of assetsor the purchase of outstanding capital stock of any Acquired Company (other than foreign Subsidiaries) and, no Event of Default orunless the Lender, event which with the lapse of time or giving of notice or bothin its discretion, would result in an Event of Default shall have occurred; and (D) the credit risk determined that such Acquired Company is not significant to the Lendersbusiness or operations of Borrower and its Subsidiaries, as determined in its sole discretionsuch Acquired Company shall become jointly and severally liable for all Lender Obligations by executing such instruments, of the Surviving Entity shall not be increased. In determining whether the proposed merger, consolidation agreements or sale of assets, would result in an increased credit risk, the Lenders may consider, among other things, changes in the Loan Parties’ (documents as the case Lender may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership resulting from additional bona fide private equity financings by financial investors shall be permitted so long as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct deem necessary or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderappropriate.

Appears in 1 contract

Samples: Credit Agreement (High Voltage Engineering Corp)

Mergers and Acquisitions. The Loan Parties shall From and after the first date upon which the Total Leverage Ratio equals or exceeds 1.0:1.0, the Borrower will not, and shall ensure their will not permit any of its Subsidiaries do notto, liquidate become a party to any merger or dissolve; or enter into any consolidation, or agree to or effect any asset acquisition or stock acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) the merger or other combination in which the stockholders consolidation of one or more of the Loan Parties Subsidiaries of the Borrower with and into the Borrower, (b) the merger or their consolidation of two or more Subsidiaries of the Borrower, and (c) the acquisition by the Borrower (whether of stock or substantially all of the assets of a business or business division as the case may bea going concern or by means of a merger or consolidation) immediately prior to such transaction own of a greater than 50% interest in any other Person, or less than 50% in any Person provided that the amount of Borrower’s investment in all such Persons does not exceed $5,000,000 in the aggregate, (a “Permitted Acquisition”), provided that (i) such other Person shall operate a business related to that of the voting stock Borrower, (ii) no Default or Event of such Loan Party or of such Subsidiary (as the case may be) immediately Default shall have occurred and be continuing and none shall exist after giving effect to such transaction Permitted Acquisition, (iii) no Permitted Acquisition shall constitute a so-called hostile acquisition or related series takeover of such transactions; other Person, and (iv) if the Borrower or sell allits Subsidiary shall merge with such other Person, such Borrower or substantially all, Subsidiary shall be the surviving party of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger or consolidation, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is hold a party; (B) all such obligations of the Surviving Entity to the Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more greater than 50% of interest in the voting stock of surviving party. Borrower shall obtain the Surviving Entity; (C) immediately after giving effect to such mergerAgent’s written consent for any other merger or acquisition, consolidation or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurred; and (D) the credit risk to the Lenders, as determined in its sole discretion, of the Surviving Entity consent shall not be increased. In determining whether the proposed merger, consolidation or sale of assets, would result in an increased credit risk, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership resulting from additional bona fide private equity financings by financial investors shall be permitted so long as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderunreasonably withheld.

Appears in 1 contract

Samples: Revolving Credit Agreement (Weider Nutrition International Inc)

Mergers and Acquisitions. The Loan Parties shall notConsolidate or merge into or with any Person, and shall ensure their Subsidiaries do notor make any Acquisition, liquidate or dissolve; or enter into any consolidation, merger or other combination in which the stockholders binding agreement to do any of the Loan Parties or their Subsidiaries (as foregoing which is not contingent on obtaining the case may be) immediately prior to such transaction own less than 50% consent of the voting stock of Required Lenders, or permit any Material Subsidiary so to do, except as follows: (a) any Subsidiary may merge into or be Acquired by a Loan Party, provided that (i) such Loan Party is the survivor or of such Subsidiary transferee thereof (as and in a transaction involving the case may beBorrower, the Borrower is the survivor or transferee thereof), and (ii) immediately before and after giving effect thereto no Default or Event of Default shall or would exist; (b) any Subsidiary may merge into or be Acquired by another Subsidiary; (c) Acquisitions of one or more Operating Entities or Properties, provided that immediately before and after giving effect to each such Acquisition under this Section 6.04(c), (1) no Default shall or would exist, and (2) all of the representations and warranties contained in Article III (other than Sections 3.04(a) and 3.12) shall be true and correct as if then made (except to the extent such representations and warranties refer to an earlier date, in which case they shall be true and correct as of such date); and (d) any Subsidiary may merge into or be Acquired by any Person (other than a Loan Party or Subsidiary), provided that (i) such transaction or related series of such transactions; or sell all, or substantially all, of the Loan Party’s or any of their Subsidiary’s assets in a single transaction or related series of transactions, except for the ITAC/IXI Merger pursuant to the Merger Agreement as in effect on the Closing Date, so long as is not prohibited by Section 6.03 and (A)-(B) are met in the following sentence. Additionally, notwithstanding the foregoing, the Loan Parties or their Subsidiaries (as the case may be) may consolidate, merge or sell all or substantially all its assets so long as: (A) the entity that results from such merger or consolidation, or proposes to purchase all, or substantially all, of the Company’s or the Parent Guarantor’s assets (as applicable, the “Surviving Entity”), shall have executed and delivered to the Lenders an agreement in form and substance reasonably satisfactory to the Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of the Company and the Parent Guarantor in the Loan Documents to which each is a party; (B) all such obligations of the Surviving Entity to the Lenders shall be guaranteed by any entity that directly or indirectly owns or controls more than 50% of the voting stock of the Surviving Entity; (Cii) immediately before and after giving effect to such merger, consolidation thereto no Default or sale of assets, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurred; and (D) the credit risk to the Lenders, as determined in its sole discretion, of the Surviving Entity shall not be increased. In determining whether the proposed merger, consolidation or sale of assets, would result in an increased credit risk, the Lenders may consider, among other things, changes in the Loan Parties’ (as the case may be) management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of Intellectual Property Rights which may reasonably be anticipated as a result of the transaction. Notwithstanding anything to the contrary in this Section 7.11: (a) changes in ownership resulting from additional bona fide private equity financings by financial investors shall be permitted so long as all rights and obligations thereunder are subordinated to the rights and Obligations owed to the Lenders; and (b) the Parent Guarantor, the Company and their Subsidiaries shall be permitted to create additional direct or indirect subsidiaries so long as the Parent Guarantor, the Company or their Subsidiaries, as applicable, promptly pledges to the Lenders its ownership interest in each such subsidiary to secure the timely payment and performance of the Obligations and such Subsidiary guarantees the Obligations under the Loan documents by executing a Guaranty Joinderexist.

Appears in 1 contract

Samples: Loan Agreement (Fiserv Inc)

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