Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9, (b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or (c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to (i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary; (ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders; (iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables), (v) Investments made in accordance with Section 11.9, (vi) Liens incurred in compliance with Section 11.2, (vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4, (viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where: (A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date; (B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and (C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and (ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and
Appears in 4 contracts
Samples: Credit Agreement (NeueHealth, Inc.), Credit Agreement (NeueHealth, Inc.), Credit Agreement (Bright Health Group Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) Neither the Borrower nor any Subsidiary shall be a party to any merger, consolidation or exchange of stock unless the Borrower shall be the surviving entity with respect to any such transaction to which the Borrower is a party and a Guarantor shall be the survivor of any merger with any Subsidiary which is not Guarantor or consolidationa Subsidiary shall be the surviving entity (and continue to be a Subsidiary) with respect to any such transactions to which one or more Subsidiaries is a party (and the conditions set forth below are satisfied), or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership partnership, membership or joint venture or other interest in, any other PersonPerson except as otherwise provided in Section 8.3 or this Section 8.4. Notwithstanding the foregoing, except for Investments the Borrower and its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock of any class of, or joint venture or other interest in, any Person if the following conditions have been met: (i) the proposed transaction will not otherwise create a Default or an Event of Default hereunder; (ii) the business to be acquired predominantly involves (A) the collection, transfer, hauling, disposal or recycling of solid waste (excluding hazardous waste as that term is defined in RCRA) or thermal soil remediation, or (B) other lines of businesses currently engaged in by Old WMI, including (1) on-site portable sanitation services, (2) industrial cleaning services, (3) chemical waste treatment, storage, disposal and related services, (4) on-site integrated hazardous waste management services, including hazardous waste identification, packaging, removal, and recycling services, (5) radioactive waste management services, (6) development and operation of waste-to-energy facilities and related services, (7) the treatment and management of biosolids, (8) design and installation of air pollution control systems and equipment, or (9) environmental and infrastructure consulting and related services, provided that revenues from operations with respect to items (3), (4) and (5) shall not exceed ten percent (10%) of consolidated revenues without the consent of the Majority Banks; (iii) the business to be acquired operates predominantly (A) in North America or (B) outside North America, PROVIDED, that the aggregate amount of such acquisitions under this clause (B) does not exceed fifteen percent (15%) of Consolidated Tangible Assets; and (iv) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition. Notwithstanding anything herein to the contrary, the ability of the Borrower and its Subsidiaries to incur any Indebtedness in connection with any transaction permitted pursuant to this Section 8.4 shall be governed by Section 11.9,8.1. Notwithstanding the foregoing, the Borrower may effect the WMI Merger provided that such transaction will not otherwise create a Default or Event of Default hereunder.
(b) Neither the Borrower nor any Subsidiary shall sell, transfer, convey or lease all any assets or substantially all group of its assets (including the sale or transfer of all any property owned by the Borrower or any Subsidiary in order then or thereafter to lease such property or lease other property which the Borrower or such Subsidiary intends to use for substantially all the same purpose as the property being sold or transferred (except (1) transfers of real or personal property among Subsidiaries of the Equity Interests of any SubsidiaryBorrower which are wholly owned by the Borrower, (2) except Regulatory Dispositions, and (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii3) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell continuing, or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any mergerwould result therefrom, consolidation, sale, transfer, conveyance, lease or assignment sales of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of businessbusiness in any calendar year with an aggregate value not greater than five percent (5%) of Consolidated Total Assets, of as set forth in the most recent financial statements delivered to the Banks pursuant to Section 7.4 hereof) or sell or assign, with or without recourse, any receivables (except accounts receivable more than sixty (60) days past due receivables arising sold or assigned in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing oncollecting past due accounts, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iiia Permitted Receivables Transaction)) shall be made for fair value and for at least 75% cash consideration, and.
Appears in 3 contracts
Samples: Quarterly Report, Quarterly Report, Revolving Credit Agreement (Waste Management Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
, (b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
continuing, after giving effect thereto on a pro forma basis, the Company and the other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period (other than a sale, transfer, conveyance or lease of all or substantially all of the assets of the Loan Parties, taken as a whole) or (c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
to (i) the Wellington Acquisition, (ii) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by (A) any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity), (B) any Subsidiary into any domestic Subsidiary (provided that if such Subsidiary has provided a guarantee of the Obligations, the continuing or surviving entity shall also provide a guarantee of the Obligations) or (C) any foreign Subsidiary into any other foreign Subsidiary;
; (iiiii) any such purchase or other acquisition by the Company or any domestic Subsidiary of the assets or Equity Interests Capital Securities of any Subsidiary and by any foreign Subsidiary of the assets or Capital Securities of any other foreign Subsidiary;
; (iiiiv) any Subsidiary Loan Party (other than the Company) may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
Lenders and no Unmatured Event of Default or Event of Default has occurred and is continuing or would result therefrom; (ivv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
, (vvi) Investments made in accordance with Section 11.9,
, (vivii) Liens incurred in compliance with Section 11.2,
11.2 and (vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries Loan Parties as of the 2019 Restatement Effective Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition;
(C) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period; and
(CD) in the case of the Acquisition of any Person, to the extent that board of directors or similar governing body of such Person has approved such Acquisition, and in the case of an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by The condition contained in clause (iiC) or above will not apply to an Acquisition if the total consideration paid (iii)including the fair market value of any property conveyed and including deferred consideration) shall be made for fair value and for at least 75% cash consideration, andsuch Acquisition does not exceed $800,000,000.
Appears in 2 contracts
Samples: Credit Agreement (Centene Corp), Credit Agreement (Centene Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Loan Parties and their Subsidiaries to,
, (a) be a party to any merger or consolidation; (b) change its state of incorporation or organization, its organization type or organization identification number or change its legal name; (c) sell, transfer, dispose of, convey, or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary); (d) sell or assign with or without recourse any receivables; (e) acquire all or any substantial part of the properties of any Person; or (f) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply tofollowing:
(i) any merger, consolidation, sale, transfer, conveyance, lease merger or assignment consolidation of a Loan Party or by any Subsidiary into the Company (provided of a Loan Party with another Loan Party or another Wholly-Owned Subsidiary of a Loan Party; provided, that the Company a Loan Party shall be the continuing surviving entity in any merger or consolidation involving a Loan Party, a Borrower shall be the surviving entity) entity in any merger or consolidation involving a Borrower and Holdings shall be the surviving entity in any other Subsidiarymerger or consolidation involving Holdings;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any SubsidiaryPermitted Acquisitions;
(iii) any Subsidiary may liquidatedispositions of equipment that is substantially worn, dissolve damaged, or wind-up if the Company determines in good faith that such liquidation or dissolution is obsolete; provided, that, in the best interests case of any disposition of equipment financed under the Company ABL Loan Agreement, the outstanding advance amount and is not materially disadvantageous all interest payable with respect thereto under the ABL Loan Agreement shall be paid to the LendersAdministrative Agent to be applied to the Term Loan (as defined in the ABL Loan Agreement) as set forth in the ABL Loan Agreement;
(iv) the discount or salelicensing, in each case without recourse on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;
(v) the lapse of registered patents, trademarks, copyrights and other intellectual property of past due receivables arising any Loan Party or any of its Subsidiaries to the extent not economically desirable and useful in the conduct of its business;
(vi) transfers of assets (a) to a Loan Party by (x) a Loan Party (other than Holdings, provided that the foregoing shall not limit Restricted Payments permitted by Section 11.3) or (y) a Subsidiary of a Loan Party (other than by a Borrower to such Subsidiary, provided that the foregoing shall not limit Restricted Payments permitted by Section 11.3 hereof) or (b) to a Borrower by a Borrower;
(vii) sales of inventory in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),;
(vviii) Investments made in accordance with Section 11.9,dispositions of Cash Equivalent Investments;
(viix) Liens incurred in compliance with transfers of cash permitted by Section 11.2,11.9(m); and
(viix) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modificationDefault or Event of Default exists and is continuing, replacementother dispositions, renewal not provided for in any other clause of this Section 11.4 in an aggregate amount not to exceed $500,000 during any consecutive twelve-month period. Notwithstanding the foregoing, in no event shall any disposition or extension increases the amount transfer be made to Quest Vertigent One, LLC other than pursuant to clause (ix) of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and.
Appears in 2 contracts
Samples: Credit Agreement (Quest Resource Holding Corp), Credit Agreement (Quest Resource Holding Corp)
Mergers, Consolidations, Sales. (a) Not, and not permit any other Loan Party or any Subsidiary of any Loan Party to,
(a) , be a party to any merger merger, consolidation or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Personamalgamation, except for Investments otherwise permitted by Section 11.9,any of the same where: (i) with respect to Borrower, Borrower is the surviving entity; (ii) with respect to any other Loan Party, such Loan Party is the surviving entity or the surviving entity (if not a Loan Party, shall become a Loan Party on or prior to consummation of such merger, consolidation or amalgamation) and (iii) with respect to any Subsidiary of any Loan Party, such Person is the surviving entity or the surviving entity shall become a Subsidiary of such Loan Party.
(b) Not, and not permit any other Loan Party or any Subsidiary of any Loan Party to, sell, transfer, dispose of, convey or lease all or substantially all any of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except for: (i) for sales or other dispositions of Cash Equivalent Investments in the ordinary course of business; (ii) sales or other dispositions constituting leases, subleases, licenses and sublicenses in the ordinary course of business; (iii) sales or other dispositions of obsolete or worn out property and/or non-core assets acquired in connection with an Acquisition; (iv) sales or other dispositions of property by (A) any Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party, (B) by any Loan Party to any other Loan Party and (C) between a Loan Party and a Subsidiary that is not a Loan Party, provided the same is conducted at arm’s length and on commercially reasonable terms; (v) sales or other dispositions by Borrower of its Capital Securities in connection with an initial public offering (IPO) by Borrower; (vi) sales or other dispositions of Inventory in the ordinary course of business; (vii) sales of inventory and obsolete other dispositions of equipment or real property to the extent that such property is exchanged for credit against the purchase price of similar replacement property or the proceeds of such sale or other disposition are reasonably promptly applied to the purchase price of such replacement property; (viii) sales or other dispositions in the ordinary course of business or of investments made by Kinsale Insurance, (iiix) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase sales or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and dispositions in the ordinary course of businessbusiness of cash or Investment Property deposited in or credited to the Securities Account and/or (x) other sales, transfers, dispositions, conveyances, or leases, in addition to the forgoing, provided that the aggregate fair market value of past due receivables arising all property sold, transferred, disposed of, conveyed or leased in reliance on this clause (x) during any Fiscal Year shall not exceed five percent (5%) of the ordinary course total assets of businessthe Borrower and its Subsidiaries, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made determined on a consolidated basis in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andGAAP.
Appears in 2 contracts
Samples: Loan and Security Agreement (Kinsale Capital Group, Inc.), Loan and Security Agreement (Kinsale Capital Group, Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) create any Subsidiary; (b) without the Required Lenders’ prior written consent, not to be a party unreasonably withheld, to consummate any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
including, without limitation, Titan Europe, (bc) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment Inventory in the ordinary course of business or as otherwise allowed in this Agreement, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(cd) sell or assign with or without recourse any receivables; except that . Notwithstanding the restrictions set forth in clauses (a)-(c) above foregoing, the following shall not apply to
be permitted: (i) any merger, consolidation, with Required Lenders’ prior written consent (such consent not to be unreasonably withheld) the sale, transfer, conveyanceconveyance or other disposition by a Loan Party of machinery and equipment during the term of this Agreement having an Orderly Liquidation Value not exceeding $50,000,000 in the aggregate, lease or assignment provided however, no disposition may occur if and to the extent that any such contemplated disposition is for a cash amount which is less than the Orderly Liquidation Value of or by any Subsidiary into the Company such asset; (ii) transfers between Obligors provided that the Company shall be Administrative Agent maintains a first priority perfected security interest in the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
asset transferred; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests sales of the Company Capital Securities of any Foreign Subsidiary; and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, transfer, conveyance or other disposition by a Loan Party of equipment or fixtures that are obsolete or no longer used or useful in each case without recourse such Loan Party’s business and having a value not exceeding $10,000,000 in the ordinary course aggregate in any Fiscal Year, provided such equipment or fixtures is replaced by equipment or fixtures of business, of past due receivables arising comparable value or worth and provided further that the Administrative Agent maintains a first priority perfected security interest in the ordinary course replacement equipment or fixtures. With respect to any disposition of business, but only in connection with the compromise assets or collection thereof consistent with customary industry practice other properties permitted pursuant to clause (and not as part of any bulk sale or financing of receivables),
(vi) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as ofabove, the Effective Date and (b) any modificationAdministrative Agent agrees, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Personupon reasonable prior written notice, to release the extent that an Acquisition which is structured Lien on such assets or other properties in order to permit the applicable Loan Party to effect such disposition and shall execute and deliver to Company at Company’s expense, appropriate UCC-3 termination statements and other releases as a merger involving the reasonably requested by Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and.
Appears in 2 contracts
Samples: Credit Agreement (Titan International Inc), Credit Agreement (Titan International Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing continuing, after giving effect thereto on a pro forma basis, the Company and the other Loan Parties shall be in compliance with (x) a Total Debt to Total Capitalization ratio set forth in Section 11.12.1 and (y) a Minimum Liquidity amount set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period (other than a sale, transfer, conveyance or lease of all or substantially all of the assets of the Loan Parties, taken as a whole) or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by (A) any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity), (B) any Subsidiary Loan Party into the Company or any other Subsidiary Loan Party or (C) any Subsidiary that is not a Loan Party into any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary Loan Party of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and described on Schedule 11.4 and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Loan Party or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and;
(C) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 as of the last day of the most recently ended Computation Period;
(D) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, ; and
(ixE) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. Collateral and Universal Care, Inc. (d/b/a Brand New Day)Guarantee Requirement is satisfied after giving effect to such Acquisition. All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and.
Appears in 2 contracts
Samples: Credit Agreement (Bright Health Group Inc.), Credit Agreement (Bright Health Group Inc.)
Mergers, Consolidations, Sales. NotEach Loan Party shall not, and not permit any Subsidiary of its Subsidiaries to,
, (ai) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Stock of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted including by Section 11.9,
way of any divisive merger or the division of a Loan Party into two or more limited liability companies; (bii) sell, transfer, convey or lease all or substantially all any substantial part of its assets assets; (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(ciii) sell or assign with or without recourse any receivables; (iv) issue or sell any Capital Stock; or (v) enter into any agreement for any of the foregoing, except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any mergermergers, consolidationconsolidations, salesales, transfertransfers, conveyanceconveyances, lease leases or assignment assignments of or by any Wholly-Owned Subsidiary into the Company (provided that or into any other domestic Wholly-Owned Subsidiary of the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Stock of any Wholly-Owned Subsidiary;
(iiib) any Subsidiary may liquidateDispositions of inventory, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company excess equipment, and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and obsolete equipment in the ordinary course of business, ;
(c) Dispositions of past due receivables arising Cash in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),; and
(vd) Investments made in accordance with Section 11.9,
the Company may issue (vii) Liens incurred in compliance with Section 11.2,
(vii) Permitted Capital Stock pursuant to any Acquisition (a) existing onemployee or director option program, benefit plan, or contractually committed to or contemplated compensation program (all as ofpermitted by the Administrative Agent in its reasonable discretion), the Effective Date and (bii) any modification, replacement, renewal or extension Capital Stock pursuant to equity investments in the Company by the Parent in the aggregate amount of any Investment described up to $5,000,000 for growth initiatives (as determined by the Administrative Agent in clause (aits sole discretion) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or Unmatured Event of Default exists, would result absent such issuance, or would result of from such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andissuance.
Appears in 2 contracts
Samples: Forbearance Agreement (Digerati Technologies, Inc.), Credit Agreement (Digerati Technologies, Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any membership or partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
for: (b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided provided, that in the case of any merger or consolidation, the Company shall be is the continuing or surviving entitysurvivor) or into, with or to any other Domestic Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or Equity Interests stock of any Domestic Subsidiary;
; (iiic) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary may liquidateinto, dissolve with or wind-up if the Company determines in good faith that to any other Foreign Subsidiary; (d) any such liquidation purchase or dissolution is in the best interests other acquisition by any Foreign Subsidiary of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount assets or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part stock of any bulk sale or financing of receivables),
Foreign Subsidiary; (v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiie) any Acquisition by the Company, any Subsidiary Company or any Insurance Domestic Subsidiary where:
if (A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of exist, (2) immediately after giving effect to such Acquisition; and
, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, (C3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the extent that an Agent in its sole discretion, to put the Person acquired in such Acquisition which is structured as back to the seller thereof for a merger involving price in cash at least equal to the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition total amount of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made cash consideration paid by the Company or any such Subsidiary pursuant in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to this Section 11.4 such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (other than those 4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) - (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; and (f) the Company and its Subsidiaries may enter into, or make additional Investments into, joint ventures permitted by clause (iiSection 9.19(j) or (iii)) shall be made for fair value and for at least 75% cash consideration, andwhich joint ventures are engaged in businesses permitted by Section 9.18.
Appears in 2 contracts
Samples: Credit Agreement (Penske Automotive Group, Inc.), Credit Agreement (Penske Automotive Group, Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Loan Parties and their Subsidiaries to,
, (a) be a party to any merger or consolidation; (b) change its state of incorporation or organization, its organization type or organization identification number or change its legal name; (c) sell, transfer, dispose of, convey, or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary); (d) sell or assign with or without recourse any receivables; (e) acquire all or any substantial part of the properties of any Person; or (f) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply tofollowing:
(i) any merger, consolidation, sale, transfer, conveyance, lease merger or assignment consolidation of a Loan Party or by any Subsidiary into the Company (provided of a Loan Party with another Loan Party or another Wholly-Owned Subsidiary of a Loan Party; provided, that the Company a Loan Party shall be the continuing surviving entity in any merger or consolidation involving a Loan Party, a Borrower shall be the surviving entity) entity in any merger or consolidation involving a Borrower and Holdings shall be the surviving entity in any other Subsidiarymerger or consolidation involving Holdings;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any SubsidiaryPermitted Acquisitions;
(iii) any Subsidiary may liquidateDispositions of equipment that is substantially worn, dissolve damaged, or wind-up if the Company determines in good faith obsolete; provided that such liquidation or dissolution is in the best interests case of any disposition of equipment financed hereunder, the Company outstanding advance amount and is not materially disadvantageous all interest payable with respect thereto shall be paid to the LendersAdministrative Agent to be applied to the Term Loan as set forth herein;
(iv) the discount or salelicensing, in each case without recourse on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;
(v) the lapse of registered patents, trademarks, copyrights and other intellectual property of past due receivables arising any Loan Party or any of its Subsidiaries to the extent not economically desirable and useful in the conduct of its business;
(vi) transfers of assets (a) to a Loan Party by (x) a Loan Party (other than Holdings, provided that the foregoing shall not limit Restricted Payments permitted by Section 9.2.3) or (y) a Subsidiary of a Loan Party (other than by a Borrower to such Subsidiary, provided that the foregoing shall not limit Restricted Payments permitted by Section 9.2.3 hereof) or (b) to a Borrower by a Borrower;
(vii) sales of inventory in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),;
(vviii) Investments made in accordance with Section 11.9,dispositions of Cash Equivalent Investments;
(viix) Liens incurred in compliance with transfers of cash permitted by Section 11.2,9.2.9(xiii); and
(viix) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal Default or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default exists and is continuing, other dispositions, not provided for in any other clause of this Section 9.2.4 in an aggregate amount not to exceed $500,000 during any consecutive twelve-month period. Notwithstanding the foregoing, in no event shall exist any disposition or would result of such Acquisition; and
(C) in the case of the Acquisition of any Persontransfer be made to Quest Vertigent One, LLC other than pursuant to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
clause (ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and9.2.4.
Appears in 2 contracts
Samples: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Loan Parties and their Subsidiaries to,
, (a) be a party to any merger or consolidation; (b) sell, transfer, dispose of, convey, or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary); (c) sell or assign with or without recourse any receivables; or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,the following:
(bi) sellany such merger, consolidation, sale, transfer, convey acquisition, conveyance, lease, or lease all assignment of or substantially all of its assets (including the sale of all by Borrower or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory Subsidiary with and obsolete equipment in the ordinary course of business or (ii) into Borrower so long as (A) no Unmatured Event other provision of this Agreement would be violated thereby; (B) Borrower gives Administrative Agent at least five (5) Business Days’ prior written notice of that merger or consolidation (or such shorter notice as Administrative Agent may agree); (C) no Default or Event of Default has occurred and is continuing or
either before or after giving effect to that transaction; and (cD) sell the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase mergers, consolidations, or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any SubsidiaryAcquisitions which are Permitted Acquisitions;
(iii) any Subsidiary may liquidatesales, dissolve leases, assignments, abandonment, or wind-up if the Company determines in good faith other dispositions of equipment that such liquidation is substantially worn, damaged, or dissolution is obsolete or no longer used or useful in the best interests ordinary course of business and leases or subleases of Real Property not useful in the conduct of the Company business of the Loan Parties and is not materially disadvantageous to the Lenderstheir Subsidiaries;
(iv) the discount licensing, sublicensing or sale, in each case without recourse and granting any other right to use on a non-exclusive basis (including the provision of software under an open source license) of Intellectual Property in the ordinary course of business;
(v) the sale or discount, in each case without recourse, of past due receivables accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,thereof;
(vi) Liens incurred (i) the lapse of registered patents, trademarks, copyrights and other Intellectual Property of any Loan Party or any of its Subsidiaries to the extent no longer used or useful or not economically desirable in compliance the conduct of its business, or (ii) the abandonment of patents, trademarks, copyrights, or other Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with Section 11.2,respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties;
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no Event of Default has occurred and is continuing or would immediately result therefrom, transfers of assets from any Subsidiary of any Loan Party that is not a Loan Party to any other Subsidiary of any Loan Party;
(viii) sales, leases, assignments, conveyances, other transfers for value and dispositions of assets, in each case, that constitute a Permitted Asset Disposition;
(ix) subject to the absence of any Default or Event of Default that is continuing or would immediately result therefrom, other Asset Dispositions of Borrower and its Subsidiaries for fair market value in an aggregate amount not to exceed $2,500,000 in any Fiscal Year; provided that with respect to any single Asset Disposition or series of related Assets Dispositions involving assets having a fair market value in excess of $500,000, at least 75% of the consideration for such modificationAsset Disposition, replacementshall consist of Cash or Cash Equivalent Investments; provided further, renewal or extension increases that the amount Net Cash Proceeds of such Investment except Asset Disposition shall be applied and/or reinvested as (and to the extent) required by this Agreement; and provided, further, that Asset Dispositions pursuant to this clause (ix) may not include any Intellectual Property material to the terms operation of Borrower’s business;
(x) issuance by Parent or any of its Subsidiaries of its Equity Interests so long as no Change of Control will occur as a result thereof and such issuance is otherwise permitted hereunder;
(xi) dispositions of receivables to an SPV Financing Entity in effect on the Effective Date connection with a receivables factoring, receivable sale or similar transaction (including any warehouse financing);
(xii) any termination or unwinding of any Permitted Bond Hedge Transaction solely to the extent the cash amount payable by Loan Parties as a result of such terminations does not exceed $5,000,000 in the accrual or accretion aggregate; and
(xiii) any disposition of interest or original issue discount or the issuance of pay-in-kind securities) or as Cash and Cash Equivalent Investments in connection with a transaction otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Moneylion Inc.), Credit Agreement (Moneylion Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
(a) , be a party to any merger or consolidation, or make any Acquisition, purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, in any other PersonPerson (other than a Person that is, except for Investments otherwise permitted by Section 11.9,
(b) or becomes as the result of purchase or acquisition, a Subsidiary), or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment (i) of or by any Subsidiary Guarantor into, with or to the Company or another Subsidiary Guarantor or (ii) of or by any wholly-owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Loan Party or into, with or to any other wholly-owned Subsidiary;
(iib) any such purchase or other acquisition by the Company or any Subsidiary Loan Party of the assets or Equity Interests stock of any wholly-owned Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisitions;
(ivd) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(e) dispositions of inventory and worn-out, obsolete or surplus equipment in the discount or saleordinary course of business and cash, in each case without recourse cash equivalents and marketable securities in the ordinary course of business;
(f) dispositions of accounts receivable with extended terms and dispositions of defaulted accounts receivable without credit recourse in transactions that do not constitute securitizations, of past due receivables arising in each case in the ordinary course of business, but only in connection with the compromise or collection thereof business consistent with customary industry past practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective DateSignificant Subsidiaries;
(Bg) sales and dispositions of assets (including stock of Subsidiaries) purchased in connection with (and as a direct result of) a Permitted Acquisition;
(h) purchases and other acquisitions of such partnership and joint venture interests so long as the aggregate amount of investments (net of any cash returns thereon) in such partnerships and joint ventures (excluding any such investment existing or committed for on the Closing Date and listed on Schedule 10.9) does not, on the date any such investment is made, exceed 20% of the consolidated tangible assets of the Company and its Subsidiaries; and
(i) other sales and dispositions of assets (including the stock of Subsidiaries) made for fair market value so long as (i) no Unmatured Event of Default pursuant to Section 12.1.1 or Event of Default exists or would exist immediately after giving effect to such Acquisitionthereto, no Event (ii) at least 75% of Default shall exist or would result of such Acquisition; and
(C) the consideration in respect thereof is in the case form of cash; and (iii) the Acquisition Net Cash Proceeds of any Person, all such sales and dispositions are applied to prepay the Term Loans pursuant to Section 6.2.4(a) to the extent that an Acquisition which is structured as a merger involving required thereby. For the Companyavoidance of doubt, the Company is granting of a Lien to secure the surviving Personrepayment of Debt or other obligations shall not, and
(ix) any salein and of itself, constitute a conveyance or transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and10.9.
Appears in 2 contracts
Samples: Credit Agreement (Regal Beloit Corp), Credit Agreement (Regal Beloit Corp)
Mergers, Consolidations, Sales. (a) Not, and not permit any Restricted Subsidiary to,to consolidate with or merge with any other Person unless immediately after giving effect to any consolidation or merger no Event of Default or Ummatured Event of Default would exist and:
(ai) in the case of a consolidation or merger of a Restricted Subsidiary, (x) the Company or another Restricted Subsidiary is the surviving or continuing corporation, (y) the surviving or continuing corporation is or immediately becomes a Restricted Subsidiary, or (z) such consolidation or merger, if considered as the sale of the assets of such Restricted Subsidiary to such other Person, would be permitted by Section 10.11(b); and
(ii) in the case of a party consolidation or merger of the Company, the successor corporation or surviving corporation which results from such consolidation or merger (the “surviving corporation”), if not the Company, (A) is a solvent United States corporation, (B) executes and delivers to each Lender its assumption of (x) the due and punctual payment of the principal of and premium, if any, and interest on the Loans, and (y) the due and punctual performance and observation of all of the covenants in this Agreement, the Collateral Documents and each other Loan Document to be performed or observed by the Company, and (C) furnishes to each Lender an opinion of counsel, reasonably satisfactory to the Required Lenders, to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
(b) Not sell, lease (as lessor) or otherwise transfer all or substantially all of its assets in a single transaction or series of transactions to any merger Person unless immediately after giving effect thereto no Event of Default or consolidationUnmatured Event of Default would exist and:
(i) the successor corporation to which all or substantially all of the Company's assets have been sold, leased or purchase transferred (the "successor corporation") is a solvent United States corporation, and
(ii) the successor corporation executes and delivers to each Lender its assumption of the due and punctual payment of the principal of and premium, if any, and interest on the Loans, and the due and punctual performance and observation of all of the covenants in this Agreement, the Collateral Documents and each other Loan Document to be performed or otherwise acquire observed by the Company and shall furnish to the Administrative Agent an opinion of counsel, reasonably satisfactory to the Required Lenders, to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such successor corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles. No such conveyance, transfer or lease of all or substantially all of the assets of the Company shall have the effect of releasing the Company or any Equity Interests of any class of, successor corporation that shall theretofore have become such in the manner prescribed in this Section 10.13 from its liability under this Agreement or any partnership or joint venture interest in, any the other Person, except for Investments otherwise permitted by Section 11.9,Loan Documents.
(bc) Not, and not permit any Restricted Subsidiary to, sell, lease (as lessor), transfer, convey abandon or lease all or substantially all otherwise dispose of its assets (including to any Person; provided that the sale of all or substantially all of the Equity Interests of any Subsidiary) except foregoing restrictions do not apply to:
(i) for sales the sale, lease, transfer or other disposition of inventory and obsolete equipment assets of the Company to a Restricted Subsidiary or of a Restricted Subsidiary to the Company or another Restricted Subsidiary;
(ii) the sale in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, inventory held for sale, transferor equipment, conveyancefixtures, lease supplies or assignment materials that are no longer required in the operation of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by business of the Company or any Restricted Subsidiary of the assets or Equity Interests of any Subsidiaryare obsolete;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the sale of property of the Company determines or any Restricted Subsidiary and the Company’s or any Restricted Subsidiary’s subsequent lease, as lessee, of the same property, within 270 days following the acquisition or construction of such property;
(iv) the sale of assets of the Company or any Restricted Subsidiary for cash or other property to a Person or Persons (other than an Affiliate) if (A) such assets (valued at net book value) do not constitute a “substantial part” of the assets of the Company and the Restricted Subsidiaries, (B) in good faith that such liquidation or dissolution the opinion of a Responsible Officer of the Company, the sale is for fair value and is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or saleCompany, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(BC) immediately after giving effect to such Acquisitionthe transaction, no Event of Default shall exist or Unmatured Event of Default would result of such Acquisitionexist; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andor
Appears in 2 contracts
Samples: Credit Agreement (Nu Skin Enterprises Inc), Credit Agreement (Nu Skin Enterprises Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey Person or lease all or substantially all of its assets (including the sale of all any business or substantially all of the Equity Interests division of any SubsidiaryPerson, (b) except (i) for sales of inventory and obsolete equipment in the ordinary course of business make any Asset Disposition, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; receivables (except that in connection with the restrictions set forth in clauses (a)-(c) above shall not apply to
departure of a consultant), except for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
, (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
, (iii) the Disposition of any Subsidiary may liquidateasset which is to be replaced, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution and is in fact replaced, within 30 days with another asset performing the best interests of the Company and is not materially disadvantageous to the Lenders;
same or a similar function, (iv) the discount or salerelease by any Loan Party of a departing employee from a non-compete agreement in exchange for a payment from such employee’s new employer, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made Asset Dispositions (including mergers and consolidations which effect Asset Dispositions) for at least fair market value (as determined by the Board of Directors of the Company) so long as (x) the net book value of all assets sold or otherwise disposed of in accordance with Section 11.9,
any Fiscal Year does not exceed 10% of the net book value of the consolidated assets of the Loan Parties as of the last day of the preceding Fiscal Year, and (y) the revenues generated by such assets do not exceed 10% of Parent’s consolidated revenues as of the prior Fiscal Year, and (vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (aincluding any merger or consolidation which effects an Acquisition) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance Wholly-Owned Subsidiary where:
(A) the Acquisition business or division acquired are for use, or the Person acquired is of a Person engaged, in a line of business which is similar or complementary to the lines of business of businesses engaged in by the Company and its Subsidiaries as of Loan Parties on the Effective Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of such Acquisition; andexist;
(C) the aggregate consideration to be paid by the Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP but excluding any consideration paid in the form of Capital Securities of any Loan Party) in connection with such Acquisition (or any series of related Acquisitions), together with all other Acquisitions consummated in the last twelve months, is less than 150% of the Company’s consolidated EBITDA during such period;
(D) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12;
(E) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(F) no more than 30 days after the closing of such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(G) no more than 30 days after the closing of such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent that an Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(H) if the target of such Acquisition is a Person or a business/division of a Person organized under the laws of a jurisdiction other than the United States or any political subdivision thereof, then (1) such Person must be organized under the laws of China, India or one of the member countries of the Organisation for Economic Co-operation and Development, and (2) at least 60% of Parent’s consolidated revenues for the previous four full Fiscal Quarters must have been generated by Parent and its domestic Subsidiaries, as determined on a pro forma basis after giving effect to such proposed Acquisition;
(I) if the aggregate consideration to be paid in connection with any Acquisition (determined in accordance with clause (C) above) is in excess of $5,000,000, then the target must have positive EBIT in the most recent 12 month period;
(J) after giving effect to each Acquisition, the Revolving Commitment must exceed the sum of Revolving Outstandings plus outstandings under the Swing Line by at least $15,000,000;
(K) the provisions of Section 10.7 have been satisfied;
(L) simultaneously with the closing of such Acquisition, the target company (if such Acquisition is structured as a purchase of equity and the target company becomes a domestic Subsidiary) executes and delivers to Administrative Agent a joinder to the Guaranty and Pledge Agreement, or at the option of Administrative Agent, in Administrative Agent’s absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company, and their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations; and
(M) if the Acquisition is structured as a merger involving the Company, then the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andentity.
Appears in 2 contracts
Samples: Credit Agreement (Lecg Corp), Credit Agreement (Lecg Corp)
Mergers, Consolidations, Sales. NotSAI will not, and will not permit any Subsidiary of its Subsidiaries to,
(a) be a party to , wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property, or enter into any sale-leaseback transactions, or purchase or otherwise acquire all (in one or substantially all a series of related transactions) any part of the property (other than purchases or other acquisitions of inventory, materials, equipment and intangible assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or reinvestments in assets) of any Person if permitted hereby (iior agree to do any of the foregoing at any future time), except that:
(a) so long as each of SAI and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any property which, in the reasonable judgment of such Person, is obsolete, worn out or otherwise no Unmatured Event longer useful in the conduct of Default such Person’s business and (y) sell, lease or Event otherwise dispose of Default has occurred any other property; provided that the aggregate net cash proceeds of all assets subject to sales or other dispositions pursuant to this sub-clause (y) shall not exceed $2.0 million in the aggregate in any four consecutive fiscal quarters of SAI;
(b) investments may be made to the extent permitted by Section 5.2(b) of the Amended and is continuing orRestated Securities Purchase Agreement;
(c) sell each of SAI and its Subsidiaries may lease (as lessee) real or assign with or without recourse personal property, in the ordinary course of business (so long as any receivables; except such lease does not create a capital lease obligation that the restrictions set forth in clauses (a)-(c) above shall is not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment otherwise permitted under Section 6.1 of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiarythis Agreement);
(iid) any such purchase each of SAI and its Subsidiaries may make sales, transfers or other acquisition by exchanges of Collateral in the Company or any Subsidiary ordinary course of business (in accordance with the assets or Equity Interests of any SubsidiarySecurity Agreements) and that are consistent with past practices;
(iiie) any Subsidiary SAI and its Subsidiaries may liquidate, dissolve sell or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or salediscount, in each case without recourse and in the ordinary course of business, of past due receivables overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivablessale),;
(vf) Investments made in accordance with Section 11.9,SAI or any Subsidiary of SAI may transfer assets or lease to or acquire or lease assets from SAI or any other Subsidiary or any Subsidiary may be merged into SAI or any other Subsidiary of SAI;
(vig) Liens incurred SAI or its Subsidiaries may sell or exchange specific items of equipment in compliance with Section 11.2,
(vii) any Acquisition (a) existing onthe ordinary course of business, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no the purpose of each such modification, replacement, renewal sale or extension increases the amount exchange is to acquire (and results within 270 days of such Investment except by sale or exchange in the terms thereof acquisition of) replacement items of equipment which are, in effect on the Effective Date (including as a result reasonable business judgment of such Person, the functional equivalent of the accrual item of equipment so sold or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisitionexchanged; and
(Ch) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer Any sale or disposition of the Equity Interests or assets equity of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Guarantor as contemplated in Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and4.16.
Appears in 2 contracts
Samples: Reimbursement Agreement, Reimbursement Agreement (Spirit Airlines, Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any membership or partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for: (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided provided, that in the case of any merger or consolidation, the Company shall be is the continuing or surviving entitysurvivor) or into, with or to any other Domestic Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or Equity Interests stock of any Domestic Subsidiary;
; (iiic) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary may liquidateinto, dissolve with or wind-up if the Company determines in good faith that to any other Foreign Subsidiary; (d) any such liquidation purchase or dissolution is in the best interests other acquisition by any Foreign Subsidiary of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount assets or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part stock of any bulk sale or financing of receivables),
Foreign Subsidiary; (v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiie) any Acquisition by the Company, any Subsidiary Company or any Insurance Domestic Subsidiary where:
if (A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of exist, (2) immediately after giving effect to such Acquisition; and
, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, (C3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the extent that an Agent in its sole discretion, to put the Person acquired in such Acquisition which is structured as back to the seller thereof for a merger involving price in cash at least equal to the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition total amount of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made cash consideration paid by the Company or any such Subsidiary pursuant in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to this Section 11.4 such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (other than those permitted by clause 4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (ii1) - (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (iii)in the case of a certificate delivered after such Acquisition) shall be made for fair value and met; (f) Dispositions of assets (including the Capital Stock of Subsidiaries) for at least 75% fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash consideration, andproceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
(a) , be a party to any merger or consolidation, or make any Acquisition, purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, in any other PersonPerson (other than a Person that is, except for Investments otherwise permitted by Section 11.9,
(b) or becomes as the result of purchase or acquisition, a Subsidiary), or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment (i) of or by any Subsidiary Guarantor into, with or to the Company or another Subsidiary Guarantor or (ii) of or by any wholly-owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Loan Party or into, with or to any other wholly-owned Subsidiary;
(iib) any such purchase or other acquisition by the Company or any Subsidiary Loan Party of the assets or Equity Interests stock of any wholly-owned Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisitions;
(ivd) the discount or saledispositions of accounts receivable, in each case without recourse lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(e) dispositions of inventory in the ordinary course of business;
(f) dispositions of accounts receivable with extended terms and dispositions of defaulted accounts receivable without credit recourse in transactions that do not constitute securitizations, of past due receivables arising in each case in the ordinary course of business, but only business consistent with past practice of the Company and its Significant Subsidiaries;
(g) sales and dispositions of assets (including stock of Subsidiaries) purchased in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),a direct result of) a Permitted Acquisition;
(vh) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date purchases and (b) any modification, replacement, renewal or extension other acquisitions of any Investment described in clause (a) above such partnership and joint venture interests so long as no such modification, replacement, renewal or extension increases the aggregate outstanding amount of investments in such Investment except by partnerships and joint ventures (excluding any such investment existing on April 30, 2007 and listed on Schedule 10.9) does not at any time exceed 20% of the terms thereof in effect on consolidated tangible assets of the Effective Date Company and its Subsidiaries; and
(i) other sales and dispositions of assets (including the stock of Subsidiaries) made for fair market value so long as a (i) no Event of Default or Unmatured Event of Default exists or would result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
therefrom; and (viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(Aii) the Acquisition is Net Cash Proceeds of a Person in a line of business all such sales and dispositions (excluding Net Cash Proceeds that are applied within 180 days after receipt thereof (or with respect to which is similar or complementary the Company has entered into binding commitments within 180 days after receipt thereof to apply such Net Cash Proceeds (but only to the lines of extent such Net Cash Proceeds are applied within 270 days after receipt thereof pursuant to such commitments)) to purchase revenue-producing assets used in the business of the Company and its Subsidiaries as or to consummate Permitted Acquisitions) in any Fiscal Year do not exceed the greater of (x) $50,000,000 and (y) 15% of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case consolidated tangible assets of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andits Subsidiaries.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership partnership, membership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by (i) any Wholly-Owned Subsidiary into into, with or to the Company or any Wholly-Owned Domestic Subsidiary (provided that (x) no Foreign Subsidiary may merge into or with the Company or any Domestic Subsidiary and (y) in the case of the merger of any Subsidiary with the Company, the Company shall be the continuing or surviving entitycorporation) or (ii) any Wholly-Owned Foreign Subsidiary into, with or to any other Wholly-Owned Foreign Subsidiary;
; (iib) any such purchase or other acquisition by (i) the Company or any Wholly-Owned Domestic Subsidiary of the assets or Equity Interests stock of any Subsidiary;
Wholly-Owned Subsidiary or (iiiii) any Wholly-Owned Foreign Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
assets or stock of any Wholly-Owned Foreign Subsidiary; (ivc) the discount or sale, in each case without recourse and dispositions of assets in the ordinary course of business; (d) dispositions of property that is substantially worn, damaged or obsolete; (e) sales, assignments or discounting by Foreign Subsidiaries of past due "traites" (within the meaning of French law) or similar post-dated checks or trade receivables arising or invoices without recourse in the ordinary course of business, but only in connection with ; (f) any other Asset Sale (including the compromise or collection thereof consistent with customary industry practice (and not as part stock of any bulk sale or financing of receivables),
(vSubsidiary) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases (i) at least 85% of the amount proceeds of such Investment except by Asset Sale are in cash, (ii) the terms Net Cash Proceeds thereof are applied as provided in effect on Section 6.2.2 and (iii) the Effective Date (including as a result consideration received at the time of such Asset Sale is at least equal to the fair market value of the accrual assets sold or accretion otherwise disposed of interest or original issue discount or the issuance of pay-in-kind securities) or (as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made determined by the Company or any Subsidiary pursuant to this acting in good faith); and (g) purchases and acquisitions of Investments permitted by Section 11.4 10.20; provided that (other than those i) no action otherwise permitted by clause (f) above shall be permitted at any time if an Event of Default or Unmatured Event of Default exists or would result therefrom and (ii) if any Asset Sale permitted by clause (f) above involves aggregate payments or value in excess of $3,000,000, the Board of Directors of the Company, acting in good faith, shall have made the determination referred to in clause (iii)f)(iii) shall be made for fair value and for at least 75% cash consideration, andabove.
Appears in 1 contract
Samples: Credit Agreement (Tokheim Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
, (b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
continuing, after giving effect thereto on a pro forma basis, the Company and the other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period (other than a sale, transfer, conveyance or lease of all or substantially all of the assets of the Loan Parties, taken as a whole) or (c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
to (i) the Fidelis Acquisition, (ii) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by (A) any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity), (B) any Subsidiary into any domestic Subsidiary (provided that if such Subsidiary has provided a guarantee of the Obligations, the continuing or surviving entity shall also provide a guarantee of the Obligations) or (C) any foreign Subsidiary into any other foreign Subsidiary;
; (iiiii) any such purchase or other acquisition by the Company or any domestic Subsidiary of the assets or Equity Interests Capital Securities of any Subsidiary and by any foreign Subsidiary of the assets or Capital Securities of any other foreign Subsidiary;
; (iiiiv) any Subsidiary Loan Party (other than the Company) may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
Lenders and no Unmatured Event of Default or Event of Default has occurred and is continuing or would result therefrom; (ivv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
, (vvi) Investments made in accordance with Section 11.9,
, (vivii) Liens incurred in compliance with Section 11.2,
11.2 and (vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries Loan Parties as of the Restatement Effective Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition;
(C) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period; and
(CD) in the case of the Acquisition of any Person, to the extent that board of directors or similar governing body of such Person has approved such Acquisition, and in the case of an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by The condition contained in clause (iiC) or above will not apply to an Acquisition if the total consideration paid (iii)including the fair market value of any property conveyed and including deferred consideration) shall be made for fair value and for at least 75% cash consideration, andsuch Acquisition does not exceed $400,000,000.
Appears in 1 contract
Samples: Credit Agreement (Centene Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) into, with or to any other Wholly-Owned Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary of the assets or Equity Interests stock of any Wholly-Owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiic) any Acquisition by the Company, any Subsidiary Company or any Insurance Wholly-Owned Subsidiary where:
where (A1) the Acquisition is of a Person in a line of business which is similar or complementary Company has provided the Banks with all historic financial information and due diligence with respect to the lines Person acquired as requested by the Agent, (2) the assets acquired (in the case of an asset purchase) are for use, or the Person acquired (in the case of any other Acquisition) is engaged, solely in the business of the Company and its Subsidiaries as of the Effective Date;
acquiring, developing or marketing software products; (B3) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist exist; (4) the consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or would result issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (or any series of related Acquisitions) is less than $5,000,000 and, together with all other Acquisitions made in accordance with this Section 10.11, is less than $15,000,000 in the aggregate; (5) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and
(C6) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
Board of Directors of such Person has approved such Acquisition; (ix7) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andone of its Wholly-Owned
Appears in 1 contract
Samples: Credit Agreement (Asg Sub Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) create any Subsidiary; (b) without the Required Lenders’ prior written consent, not to be a party unreasonably withheld, to consummate any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(bc) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment Inventory in the ordinary course of business or as otherwise allowed in this Agreement, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(cd) sell or assign with or without recourse any receivables; except that . Notwithstanding the restrictions set forth in clauses (a)-(c) above foregoing, the following shall not apply to
be permitted: (i) any merger, consolidation, with Required Lenders’ prior written consent (such consent not to be unreasonably withheld) the sale, transfer, conveyanceconveyance or other disposition by a Loan Party of machinery and equipment during the term of this Agreement having an Orderly Liquidation Value not exceeding $50,000,000 in the aggregate, lease or assignment provided however, no disposition may occur if and to the extent that any such contemplated disposition is for a cash amount which is less than the Orderly Liquidation Value of or by any Subsidiary into the Company such asset; (ii) transfers between Obligors provided that the Company shall be Agent maintains a first priority perfected security interest in the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
asset transferred; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests sales of the Company Capital Securities of any Foreign Subsidiary; and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, transfer, conveyance or other disposition by a Loan Party of equipment or fixtures that are obsolete or no longer used or useful in each case without recourse such Loan Party’s business and having a value not exceeding $3,000,000 in the ordinary course aggregate in any Fiscal Year, provided such equipment or fixtures is replaced by equipment or fixtures of business, of past due receivables arising comparable value or worth and provided further that Agent maintains a first priority perfected security interest in the ordinary course replacement equipment or fixtures. With respect to any disposition of businessassets or other properties permitted pursuant to clause (i) above, Agent agrees, upon reasonable prior written notice, to release the Lien on such assets or other properties in order to permit the applicable Loan Party to effect such disposition and shall execute and deliver to Company at Company’s expense, appropriate UCC-3 termination statements and other releases as reasonably requested by Company. The Goodyear Acquisition and the Continental Acquisition are expressly consented to by the Lenders but only in connection accordance with the compromise or collection thereof consistent with customary industry practice (terms and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result conditions of the accrual or accretion of interest or original issue discount or Asset Purchase Agreement and the issuance of pay-in-kind securities) or as otherwise permitted by this Continental Asset Purchase Agreement.”
8. Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business 11.14.1 of the Company Credit Agreement is hereby amended in its entirety to be and its Subsidiaries read as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andfollows:
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any membership or partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for: (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided provided, that in the case of any merger or consolidation, the Company shall be is the continuing or surviving entitysurvivor) or into, with or to any other Domestic Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or Equity Interests stock of any Domestic Subsidiary;
; (iiic) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary may liquidateinto, dissolve with or wind-up if the Company determines in good faith that to any other Foreign Subsidiary; (d) any such liquidation purchase or dissolution is in the best interests other acquisition by any Foreign Subsidiary of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount assets or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part stock of any bulk sale or financing of receivables),
Foreign Subsidiary; (v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(viie) any Acquisition (aother than a Foreign Acquisition) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance Domestic Subsidiary where:
if (A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of exist, (2) immediately after giving effect to such Acquisition; and
, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, (C3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the extent that an Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is structured as a merger involving otherwise unconditional, and which option must be exercised by the CompanyCompany or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company is shall have delivered a certificate to the surviving Person, and
Agent confirming that the conditions set forth in clauses (ix1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (f) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made Foreign Acquisition by the Company or any Subsidiary pursuant if (1) immediately before and after giving effect to this such Foreign Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) immediately after giving effect to such Foreign Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.4 9.6, (3) in the case of the Foreign Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Foreign Acquisition and all requisite Manufacturers have consented to such Foreign Acquisition (provided that such Manufacturers need not have consented to such Foreign Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Foreign Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Foreign Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Foreign Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Foreign Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) after giving effect to such Foreign Acquisition, the sum of (i) the total consideration (including cash and noncash purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) paid by the Company and its Domestic Subsidiaries for all Foreign Acquisitions made after the Effective Date plus (ii) the aggregate amount of all Foreign Investments made by the Company and its Domestic Subsidiaries after the Effective Date plus (iii) the aggregate amount of all Restricted Equity Payments made by the Company and its Domestic Subsidiaries to Foreign Persons (other than those Restricted Equity Payments made by the Company to its stockholders permitted by clause (iiii)(1) or of the proviso to the first sentence of Section 9.9) after the Effective Date shall not exceed the Foreign Amount; (iii)g) shall be made for fair value sales and dispositions (“Dispositions”) of assets (including the Capital Stock of Subsidiaries) for at least 75% fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash consideration, andproceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (h) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses except, notwithstanding any of (a)-(ca), (b), (c) above shall not apply to
above, for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve the sale or wind-up if the Company determines in good faith that such liquidation other disposition for fair market value of obsolete or dissolution is worn out property or other property not necessary for operations disposed of in the best interests ordinary course of the Company and is not materially disadvantageous to the Lenders;
business; (iv) the discount or salesales and dispositions of trucks, in each case without recourse truck-tractors, trailers and semi-trailers in the ordinary course of business, so long as the proceeds from such sale or disposition, net of past due receivables arising commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable in connection therewith to non-Affiliates, are applied to the purchase or lease of replacement trucks, truck-tractors, tractors, trailers and semi-trailers for use in the ordinary course of business, but only in connection with business of the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
Loan Parties; (v) Investments made in accordance with Section 11.9,
addition to sales and dispositions permitted in (viiii) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (biv) any modificationabove, replacement, renewal or extension sales and dispositions of any Investment described in clause assets (aincluding the Capital Securities of Subsidiaries) above (but excluding accounts receivable) for at least fair market value (as determined by the Board of Directors of the Company) so long as no such modification, replacement, renewal the net book value of all assets sold or extension increases the amount otherwise disposed of such Investment except by the terms thereof in effect on the Effective Date (including as a result any Fiscal Year does not exceed 10% of the accrual or accretion net book value of interest or original issue discount or the issuance consolidated assets of pay-in-kind securities) or the Loan Parties as otherwise permitted by this Section 11.4,
of the last day of the preceding Fiscal Year; and (viiivi) any Acquisition by the Company, any Subsidiary Company or any Insurance domestic Wholly-Owned Subsidiary where:
(A) the Acquisition business or division acquired are for use, or the Person acquired is of a Person engaged, in a line of business which is similar or complementary to the lines of business of businesses engaged in by the Company and its Subsidiaries as of Loan Parties on the Effective Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of such Acquisition; andexist;
(C) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.14;
(D) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(E) reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(F) not less than ten Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent that an Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma compliance with the financial covenants provided in Section 11.14;
(G) the Administrative Agent shall have approved the Company’s computation of the pro forma compliance with the financial covenants provided in Section 11.14;
(H) the provisions of Section 11.10 have been satisfied;
(I) simultaneously with the closing of such Acquisition, the target company (if such Acquisition which is structured as a purchase of equity) or the Loan Party (if such Acquisition is structured as a purchase of assets or a merger involving and a Loan Party is the Companysurviving entity) executes and delivers to Administrative Agent an unlimited Guaranty of the Obligations, or at the option of Administrative Agent in Administrative Agent's absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company, and their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations; and
(J) if the Acquisition is structured as a merger, the Company or a Wholly-Subsidiary is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andentity.
Appears in 1 contract
Samples: Credit Agreement (Celadon Group Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, of any other Person; provided, except for Investments otherwise permitted by Section 11.9,
that so long as no Event of Default exists or would be caused thereby, the Borrower may engage in the foregoing transactions so long as the aggregate consideration paid or to be paid in connection therewith (including cash and earn-outs) does not exceed $7,500,000 during the term of this Agreement, (b) sell, transfer, convey or lease (a "Disposition") all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business Interests, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign (other than for security purposes) with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease Disposition or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing Borrower or surviving entity) or into any other Domestic Wholly-Owned Subsidiary;
, (ii) any such purchase or other acquisition by the Company Borrower or any Domestic Wholly-Owned Subsidiary of the assets or Equity Interests of any Wholly-Owned Subsidiary;
, (iii) Dispositions of assets for at least fair market value (as determined by the Board of Directors of the Borrower) so long as the net book value of all assets Disposed of in any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is Fiscal Year (other than in the best interests ordinary course of business) does not exceed 20% of the Company and is not materially disadvantageous to net book value of the Lenders;
consolidated total assets of the Loan Parties as of the last day of the preceding Fiscal Year, (iv) any Loan Party may Dispose of any, all or substantially all of its assets (upon voluntary liquidation or otherwise) to the discount Borrower or saleto another Subsidiary, in each case without recourse and (v) Dispositions of used, damaged, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business, (vi) Dispositions (x) of past due receivables arising assets (including real property) or inventory in the ordinary course of business, but only or (y) with respect to property of any Loan Party that is no longer necessary for such Loan Party's business as conducted prior thereto or thereafter contemplated, (vii) Dispositions of equipment or real property to the extent that (x) such property is exchanged for credit against the purchase price of similar replacement property or (y) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property, (viii) Dispositions of Investments, (ix) [Reserved], (x) sale-leaseback transactions in connection with financing of equipment or other property used in the ordinary course of business of the Borrower that is otherwise permitted pursuant to Section 11.1, (xi) Dispositions of accounts receivable in connection with the collection or compromise thereof, (xii) leases, subleases, licenses or collection thereof consistent with customary industry practice (and not as part sublicenses of any bulk sale or financing of receivables),
(v) Investments made property in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line ordinary course of business and which is similar or complementary to do not materially interfere with the lines of business of the Company Loan Parties, and its Subsidiaries as (xiii) transfers of the Effective Date;
(B) immediately after giving effect property suhject to such Acquisitioncasualty events, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. governmental takings and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andinvoluntary transfers.
Appears in 1 contract
Samples: Credit Agreement (Weyco Group Inc)
Mergers, Consolidations, Sales. (A) Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or be a party to any Asset Sale, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(i) any such merger, consolidation, sale, transfertransfer (upon voluntary liquidation or otherwise), conveyance, lease or assignment of or by any (a) Credit Party into, with or to any Credit Party, (b) Subsidiary into the Company (provided that the Company into, with or to any Credit Party if such Credit Party shall be the continuing or surviving entityentity or (c) any Subsidiary that is not a Credit Party with or into any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary sales of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and inventory in the ordinary course of business, ;
(iii) the pledge of past due receivables arising Collateral pursuant to the Collateral Documents and the incurrence of any Lien permitted by Section 10.8;
(iv) Asset Sales of worn out or obsolete property by any Subsidiary in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),;
(v) Investments made Asset Sales by a Credit Party in accordance with which such Credit Party substantially contemporaneously leases the transferred asset back from the transferee, provided that, the Attributable Debt in respect of any such Asset Sales is permitted under Section 11.9,10.7;
(vi) Liens incurred in compliance (a) the sale of the Parent's Casa Grande facility with Section 11.2,the prior written consent of the Agents, which consent shall not be unreasonably withheld or delayed and (b) other Asset Sales for which the sole consideration received is cash of assets with an aggregate fair market value not exceeding $500,000 from and after the Closing Date;
(vii) transfers resulting from any Acquisition (a) existing on, casualty or contractually committed condemnation of property with an aggregate fair market value of up to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,$250,000;
(viii) any Acquisition the making of Investments permitted by Section 10.20 and the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is liquidation of a Person Investments in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) Cash Equivalents in the case ordinary course of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, business; and
(ix) transfers of assets of any sale, transfer Credit Party pursuant to the Asset Purchase Documents. To the extent that the Required Lenders waive the provisions of this Section 10.11 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 10.11, such Collateral shall be sold or otherwise disposed of free and clear of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made Lien created by the Company or Collateral Documents and the obligations of this Agreement and the Administrative Agent shall, at the expense of the Borrowers, take such actions as are appropriate and reasonably requested by the Borrowers in connection therewith.
(B) With respect to any new wholly owned Subsidiary pursuant to this Section 11.4 (other than those permitted a Non-United States Subsidiary) created or acquired after the Closing Date by clause any Credit Party, the applicable Credit Party shall (i) cause such newly created or acquired Subsidiary to execute and deliver to the Administrative Agent a joinder to this Agreement, substantially in the form of Exhibit C, the Pledge Agreement, the Security Agreement, and the Contribution and Subordination Agreement and (ii) deliver promptly to the Administrative Agent an amendment to the schedules to the Pledge Agreement and the Security Agreement in form and substance reasonably satisfactory to the Administrative Agent listing the shares of capital stock of such Subsidiary held by such Credit Party and the certificates, if any, representing such shares, together with undated stock powers, in blank, executed by a Responsible Officer of such Credit Party. With respect to any new Non-United States wholly owned Subsidiary created or (iii)) acquired after the Closing Date and held directly by any Credit Party formed in the United States, the applicable Credit Party shall be made for fair value deliver promptly to the Administrative Agent an amendment to the schedules to the Pledge Agreement and for at least 75% cash considerationthe Security Agreement in form and substance reasonably satisfactory to the Administrative Agent listing the shares of capital stock of such Subsidiary held by such Credit Party and the certificates, andif any, representing such shares, together with undated stock powers, in blank, executed by a Responsible Officer of such Credit Party.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Loan Parties and their Subsidiaries to,
, (a) be a party to any merger or consolidation; (b) sell, transfer, dispose of, convey, or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary); (c) sell or assign with or without recourse any receivables; or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,the following:
(bi) sellany such merger, consolidation, sale, transfer, convey acquisition, conveyance, lease, or lease all assignment of or substantially all of its assets (including the sale of all by Borrower or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory Subsidiary with and obsolete equipment in the ordinary course of business or (ii) into Borrower so long as (A) no Unmatured Event other provision of this Agreement would be violated thereby; (B) Borrower gives Administrative Agent at least five (5) Business Days’ prior written notice of that merger or consolidation (or such shorter notice as Administrative Agent may agree); (C) no Default or Event of Default has occurred and is continuing or
either before or after giving effect to that transaction; and (cD) sell the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase mergers, consolidations, or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any SubsidiaryAcquisitions which are Permitted Acquisitions;
(iii) any Subsidiary may liquidatesales, dissolve leases, assignments, abandonment, or wind-up if the Company determines in good faith other dispositions of equipment that such liquidation is substantially worn, damaged, or dissolution is obsolete or no longer used or useful in the best interests ordinary course of business and leases or subleases of Real Property not useful in the conduct of the Company business of the Loan Parties and is not materially disadvantageous to the Lenderstheir Subsidiaries;
(iv) the discount licensing, sublicensing or sale, in each case without recourse and granting any other right to use on a non-exclusive basis (including the provision of software under an open source license) of Intellectual Property in the ordinary course of business;
(v) the sale or discount, in each case without recourse, of past due receivables accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent thereof;
(i) the lapse of registered patents, trademarks, copyrights and other Intellectual Property of any Loan Party or any of its Subsidiaries to the extent no longer used or useful or not economically desirable in the conduct of its business, or (ii) the abandonment of patents, trademarks, copyrights, or other Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with customary industry practice respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties;
(vii) so long as no Event of Default has occurred and is continuing or would immediately result therefrom, transfers of assets from any Subsidiary of any Loan Party that is not a Loan Party to any other Subsidiary of any Loan Party;
(viii) sales, leases, assignments, conveyances, other transfers for value and dispositions of assets, in each case, that constitute a Permitted Asset Disposition;
(ix) subject to the absence of any Default or Event of Default that is continuing or would immediately result therefrom, other Asset Dispositions of Borrower and its Subsidiaries for fair market value in an aggregate amount not to exceed $2,500,000 in any Fiscal Year; provided that with respect to any single Asset Disposition or series of related Assets Dispositions involving assets having a fair market value in excess of $500,000, at least 75% of the consideration for such Asset Disposition, shall consist of Cash or Cash Equivalent Investments; provided further, that the Net Cash Proceeds of such Asset Disposition shall be applied and/or reinvested as (and to the extent) required by this Agreement; and provided, further, that Asset Dispositions pursuant to this clause (ix) may not include any Intellectual Property material to the operation of Borrower’s business;
(x) issuance by Parent or any of its Subsidiaries of its Equity Interests so long as part no Change of Control will occur as a result thereof and such issuance is otherwise permitted hereunder;
(xi) dispositions of receivables to an SPV Financing Entity in connection with a receivables factoring, receivable sale or similar transaction (including any warehouse financing);
(xii) any termination or unwinding of any bulk sale or financing Permitted Bond Hedge Transaction solely to the extent the cash amount payable by Loan Parties as a result of receivables),such terminations does not exceed $5,000,000 in the aggregate; and
(vxiii) any disposition of Cash and Cash Equivalent Investments made in connection with a transaction otherwise permitted by this Agreement. ; and
(xiv) dispositions of Instacash Receivables pursuant to (and in accordance with) the SP Forward Flow Agreement, so long as (x) the proceeds of such dispositions are deposited into an account subject to a Control Agreement in accordance with Section 11.9,
(vi10.11(b) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (by) any modification, replacement, renewal or extension customer payments in respect of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company Instacash Receivables and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made related amounts collected by the Company (or any Subsidiary a Subsidiary) pursuant to this Section 11.4 the Servicing Agreement are initially paid into the Instacash Servicer Account and are subject to (and applied in a manner consistent with) the terms of the SP Intercreditor Agreement, including sweeping Excluded Amounts (as defined in the SP Master Receivables Purchase Agreement), and other than those permitted by clause (ii) amounts to which the Company or (iii)) shall be made for fair value and for at least 75% cash considerationits Subsidiaries are entitled, andto accounts subject to a Control Agreement on a daily basis.
Appears in 1 contract
Samples: Credit Agreement (Moneylion Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) create any Subsidiary; (b) without the Agents' prior written consent, not to be a party unreasonably withheld, to consummate any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(bc) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment Inventory in the ordinary course of business or as otherwise allowed in this Agreement, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(cd) sell or assign with or without recourse any receivables; except that . Notwithstanding the restrictions set forth in clauses (a)-(c) above foregoing, the following shall not apply to
be permitted: (i) any merger, consolidation, with Required Lenders' prior written consent (such consent not to be unreasonably withheld) the sale, transfer, conveyanceconveyance or other disposition by a Loan Party of machinery and equipment during the term of this Agreement having an Orderly Liquidation Value not exceeding $50,000,000 in the aggregate, lease or assignment provided however, no disposition may occur if and to the extent that any such contemplated disposition is for a cash amount which is less than the Orderly Liquidation Value of or by any Subsidiary into the Company such asset; (ii) transfers between Obligors provided that the Company shall be Agents maintain a first priority perfected security interest in the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
asset transferred; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests sales of the Company Capital Securities of any Foreign Subsidiary; and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, transfer, conveyance or other disposition by a Loan Party of equipment or fixtures that are obsolete or no longer used or useful in each case without recourse such Loan Party's business and having a value not exceeding $3,000,000 in the ordinary course aggregate in any Fiscal Year, provided such equipment or fixtures is replaced by equipment or fixtures of business, of past due receivables arising comparable value or worth and provided further that Agents maintain a first priority perfected security interest in the ordinary course replacement equipment or fixtures. With respect to any disposition of business, but only in connection with the compromise assets or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed other properties permitted pursuant to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (ai) above so long as no such modificationabove, replacementAgents agree, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Personupon reasonable prior written notice, to release the extent that an Acquisition which is structured Lien on such assets or other properties in order to permit the applicable Loan Party to effect such disposition and shall execute and deliver to Company at Company's expense, appropriate UCC-3 termination statements and other releases as a merger involving the reasonably requested by Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any membership or partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for: (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that in the case of a merger or consolidation, the Company shall is the survivor) or into, with or to any other Wholly-Owned Subsidiary that is a Collateral Subsidiary (provided, that in the case of any merger or consolidation involving a Collateral Subsidiary, a Collateral Subsidiary must be the continuing or surviving entitysurvivor) or any other Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary that is a Collateral Subsidiary of the assets or Equity Interests stock of any Wholly-Owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiic) any Acquisition by the Company, any Subsidiary Company or any Insurance Wholly-Owned Subsidiary where:
that is a Collateral Subsidiary if (A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of exist, (2) immediately after giving effect to such Acquisition; and
, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, (C3) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition and all Manufacturers doing business with such Person have consented to such Acquisition, (4) in the extent that case of an Acquisition which is structured as of equity interests of an entity, such Acquisition shall be of 100% of the equity interests of such entity except that in the case of a merger involving Majority Acquisition, such Acquisition shall be of at least 80% of the Companyequity interests of such entity, (5) the Company is shall have obtained either (i) a written approval for a new Dealer Franchise Agreement between the surviving Person, and
(ix) any sale, transfer entity to be acquired in such Acquisition and the Manufacturer on substantially the same terms as the Dealer Franchise Agreement entered into between the Manufacturer and the entity to be acquired in such Acquisition or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) any consent required from a Manufacturer for the continued enforceability and validity of such Dealer Franchise Agreement after the completion of a Acquisition shall have been obtained, (6) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) - (5) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (iii)in the case of a certificate delivered after such Acquisition) shall be made for fair value met; (d) sales of Equipment to Lithia Financial, and sales of real estate to Lithia Real Estate, in each case in the ordinary course of business in connection with an Acquisition permitted hereunder by the Subsidiary acquired in such Acquisition (or, in the case of an acquisition of assets, by the Subsidiary acquiring such assets) for at least 75fair market value (as determined in good faith by the Board of Directors of the Company) and where all the consideration is cash; and (e) sales and dispositions of assets (including the stock of Subsidiaries) for at least fair market value (as determined in good faith by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed 10% cash consideration, andof the net book value of the consolidated assets of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Lithia Motors Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) be a party to , merge or consolidate with any merger or consolidationPerson, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or (except for Investments otherwise permitted by Section 11.9,
(bthe sale or lease of inventory in the ordinary course of business) sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables, except for:
(a) the Parent or any Subsidiary may merge or consolidate (x) with the Parent or any Subsidiary or (y) with any other Person to complete a Permitted Acquisition; except provided that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company Parent shall be the continuing or surviving entityPerson in any such transaction involving the Parent, (ii) the applicable Borrower shall be the continuing or surviving Person in any other Subsidiarysuch transaction involving such Borrower and (iii) subject to the preceding clauses (i) and (ii), a Loan Party shall be the continuing or surviving Person in any such transaction involving a Loan Party (unless such Loan Party is ceasing to be a Subsidiary as a result of such transaction);
(iib) any such purchase or other acquisition (and the corresponding sale or other transfer) by the Company or any wholly-owned Subsidiary of the assets or Equity Interests stock of any Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisition;
(ivd) the discount sales or sale, in each case without recourse and assignments of receivables in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof business consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),past practice;
(ve) sales and other dispositions of Margin Stock;
(f) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(g) Investments made in accordance with permitted by Section 11.9,10.18(n);
(vih) Liens incurred in compliance with Section 11.2,
other sales and dispositions of assets (viiincluding the stock of Subsidiaries and including through a merger) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal the net book value of all assets sold or extension increases the amount otherwise disposed of such Investment except by the terms thereof in effect on the Effective Date any Fiscal Year does not exceed $40,000,000; and
(i) other sales and dispositions of assets (including the stock of Subsidiaries and including through a merger) so long as (i) both immediately before, and on a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) pro forma basis immediately after giving effect thereto, the Leverage Ratio is not greater than 3.5 to such Acquisition, 1.0 based on the most recently available quarterly financial statements of the Parent and (ii) no Event of Default shall exist exists or would will result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andtherefrom.
Appears in 1 contract
Samples: Credit Agreement (Middleby Corp)
Mergers, Consolidations, Sales. NotEach Loan Party shall not, and not permit any Subsidiary of its Subsidiaries to,
, (ai) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Stock of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted including by Section 11.9,
way of any divisive merger or the division of a Loan Party into two or more limited liability companies; (bii) sell, transfer, convey or lease all or substantially all any substantial part of its assets assets; (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(ciii) sell or assign with or without recourse any receivables; (iv) issue or sell any Capital Stock; or (v) enter into any agreement for any of the foregoing, except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any mergermergers, consolidationconsolidations, salesales, transfertransfers, conveyanceconveyances, lease leases or assignment assignments of or by any Wholly-Owned Subsidiary into the Company (provided that or into any other domestic Wholly-Owned Subsidiary of the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Stock of any Wholly- Owned Subsidiary;
(iiib) any Subsidiary may liquidateDispositions of inventory, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company excess equipment, and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and obsolete equipment in the ordinary course of business, ;
(c) Dispositions of past due receivables arising Cash in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),; and
(vd) Investments made in accordance with Section 11.9,
the Company may issue (vii) Liens incurred in compliance with Section 11.2,
(vii) Permitted Capital Stock pursuant to any Acquisition (a) existing onemployee or director option program, benefit plan, or contractually committed to or contemplated compensation program (all as ofpermitted by the Administrative Agent in its reasonable discretion), the Effective Date and (bii) any modification, replacement, renewal or extension Capital Stock pursuant to equity investments in the Company by the Parent in the aggregate amount of any Investment described up to $5,000,000 for growth initiatives (as determined by the Administrative Agent in clause (aits sole discretion) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or Unmatured Event of Default exists, would result absent such issuance, or would result of from such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andissuance.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
, (b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
continuing, after giving effect thereto on a pro forma basis, the Company and the other Loan Parties shall be in compliance with a Net Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.11.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period (other than a sale, transfer, conveyance or lease of all or substantially all of the assets of the Loan Parties, taken as a whole) or (c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
to (i) the Magellan Acquisition, (ii) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by (A) any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity), (B) any Subsidiary into any domestic Subsidiary (provided that if such Subsidiary has provided a guarantee of the Obligations, the continuing or surviving entity shall also provide a guarantee of the Obligations) or (C) any foreign Subsidiary into any other foreign Subsidiary;
; (iiiii) any such purchase or other acquisition by the Company or any domestic Subsidiary of the assets or Equity Interests Capital Securities of any Subsidiary and by any foreign Subsidiary of the assets or Capital Securities of any other foreign Subsidiary;
; (iiiiv) any Subsidiary Loan Party (other than the Company) may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
Lenders and no Unmatured Event of Default or Event of Default has occurred and is continuing or would result therefrom; (ivv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
, (vvi) Investments made in accordance with Section 11.9,
, (vivii) Liens incurred in compliance with Section 11.2,
11.2 and (vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries Loan Parties as of the Effective Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition;
(C) immediately after giving effect to such Acquisition and the incurrence or assumption of Debt in connection therewith (including the use of proceeds thereof), the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.11 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period; and
(CD) in the case of the Acquisition of any Person, to the extent that board of directors or similar governing body of such Person has approved such Acquisition, and in the case of an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by The condition contained in clause (iiC) or above will not apply to an Acquisition if the total consideration paid (iii)including the fair market value of any property conveyed and including deferred consideration) shall be made for fair value and for at least 75% cash consideration, andsuch Acquisition does not exceed $800,000,000.
Appears in 1 contract
Samples: Credit Agreement (Centene Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing any Borrower or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company any Borrower or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve or wind-up if sales and dispositions of assets (including the Company determines in good faith that such liquidation or dissolution is in Capital Securities of Subsidiaries) for at least fair market value (as determined by the best interests Board of Directors of the Company and is applicable Borrower) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not materially disadvantageous to exceed 5% of the Lenders;
net book value of the consolidated assets of the Loan Parties as of the last day of the preceding Fiscal Year; (iv) any Loan Party may merge, consolidate, amalgamate or purchase or acquire the discount assets of (or sale, engage in each case without recourse a disposition to) or dissolve into any other Loan Party or Subsidiary in a transaction in which such Loan Party is the surviving entity; and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Borrower or any Insurance domestic Wholly-Owned Subsidiary where:
(A) the Acquisition business or division acquired are for use, or the Person acquired is of a Person engaged, in a line of business which is similar or complementary to the lines of business of businesses engaged in by the Company and its Subsidiaries as of Loan Parties on the Effective Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of such Acquisition; andexist;
(C) the aggregate consideration to be paid by the Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (or any series of related Acquisitions) is equal to or less than $20,000,000 provided that with the prior written consent of the Required Lenders, such amount may exceed $20,000,000 and if greater than $50,000,000, the target shall have been audited by a nationally recognized accounting firm or have undergone review by an accounting firm acceptable to the Administrative Agent as a part of the Acquisition due diligence;
(D) immediately after giving effect to such Acquisition, the Borrowers are in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.13 , provided that the pro forma Leverage Ratio shall be 25 basis points below the maximum Leverage Ratio specified in section 11.13.3 hereof;
(E) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(F) if the aggregate consideration to be paid by the Loan Parties in connection with such Acquisition is greater than $6,000,000, then reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(G) if the aggregate consideration to be paid by the Loan Parties in connection with such Acquisition is greater than $6,000,000, then not less than ten Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent that an Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Borrowers’ calculation of pro forma EBITDA relating thereto;
(H) the Administrative Agent and Required Lenders shall have approved the Borrowers’ computation of pro forma EBITDA and the same shall be positive on a pro forma basis for the trailing 12 month period;
(I) consents have been obtained in favor of the Administrative Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Loan Parties and (if delivered to the Loan Party) the selling party in favor of the Administrative Agent and the Lenders have been delivered;
(J) the provisions of Section 10.9 have been satisfied; and
(K) if the Acquisition which is structured as a merger involving the Companymerger, the Company applicable Loan Party is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andentity.
Appears in 1 contract
Samples: Credit Agreement (Landauer Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Loan Parties and their Subsidiaries to,
, (a) be a party to any merger or consolidation; (b) sell, transfer, dispose of, convey, or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), including the assets or Equity Interests of Kandy; (c) sell or assign with or without recourse any receivables; or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,the following:
(bi) sellany such merger, consolidation, sale, transfer, convey acquisition, conveyance, lease, or lease all assignment of or substantially all of its assets (including the sale of all by Borrower or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory Subsidiary with and obsolete equipment in the ordinary course of business or (ii) into Borrower so long as (A) no Unmatured Event other provision of this Agreement would be violated thereby; (B) Borrower gives Administrative Agent at least 15 days’ prior written notice of that merger or consolidation; (C) no Default or Event of Default has occurred and is continuing or
either before or after giving effect to that transaction; and (cD) sell the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase sales, abandonment, or other acquisition by dispositions of equipment that is substantially worn, damaged, or obsolete or no longer used or useful in the Company ordinary course of business and leases or any Subsidiary subleases of Real Property not useful in the conduct of the assets or Equity Interests business of any Subsidiarythe Loan Parties and their Subsidiaries;
(iii) any Subsidiary may liquidatethe licensing, dissolve or windon a non-up if the Company determines in good faith that such liquidation or dissolution is exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the best interests ordinary course of the Company and is not materially disadvantageous to the Lendersbusiness;
(iv) the discount sale or salediscount, in each case without recourse and in the ordinary course of businessrecourse, of past due receivables accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice thereof;
(i) the lapse of registered patents, trademarks, copyrights and not as part other intellectual property of any bulk sale Loan Party or financing any of receivablesits Subsidiaries to the extent not economically desirable in the conduct of its business, or (ii) the abandonment of patents, trademarks, copyrights, or other intellectual property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii),
), (vA) Investments made in accordance with Section 11.9,respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Secured Parties;
(vi) Liens incurred in compliance with Section 11.2,so long as no Event of Default has occurred and is continuing or would immediately result therefrom, transfers of assets from any Subsidiary of any Loan Party that is not a Loan Party to any other Subsidiary of any Loan Party;
(vii) any Acquisition sales, leases, assignments, conveyances, other transfers for value and dispositions of assets, in each case, of the type specifically described in clauses (a) existing on, or contractually committed to or contemplated as of, the Effective Date and through (bd) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion definition of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,“Asset Disposition”; and
(viii) any Acquisition by merger, sale or disposition constituting the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any PersonComputex Sale, to the extent that an Acquisition which is structured as a merger involving the CompanyNet Cash Proceeds thereof are sufficient (and are used) to repay the Term Loans in full (together with any accrued interest and fees and other amounts owing under the terms of this Agreement, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Dayincluding Applicable Premium). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and.
Appears in 1 contract
Samples: Credit Agreement (American Virtual Cloud Technologies, Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Loan Parties and their Subsidiaries to,
, (a) be a party to any merger or consolidation; (b) sell, transfer, dispose of, convey, or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary); (c) sell or assign with or without recourse any receivables; or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,the following:
(bi) sellany such merger, consolidation, sale, transfer, convey acquisition, conveyance, lease, or lease all assignment of or substantially all of its assets (including the sale of all by Borrower or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory Subsidiary with and obsolete equipment in the ordinary course of business or (ii) into Borrower so long as (A) no Unmatured Event other provision of this Agreement would be violated thereby; (B) Borrower gives Administrative Agent at least five (5) Business Days’ prior written notice of that merger or consolidation (or such shorter notice as Administrative Agent may agree); (C) no Default or Event of Default has occurred and is continuing or
either before or after giving effect to that transaction; and (cD) sell the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase mergers, consolidations, or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any SubsidiaryAcquisitions which are Permitted Acquisitions;
(iii) any Subsidiary may liquidatesales, dissolve leases, assignments, abandonment, or wind-up if the Company determines in good faith other dispositions of equipment that such liquidation is substantially worn, damaged, or dissolution is obsolete or no longer used or useful in the best interests ordinary course of business and leases or subleases of Real Property not useful in the conduct of the Company business of the Loan Parties and is not materially disadvantageous to the Lenderstheir Subsidiaries;
(iv) the discount licensing, sublicensing or sale, in each case without recourse and granting any other right to use on a non-exclusive basis (including the provision of software under an open source license) of Intellectual Property in the ordinary course of business;
(v) the sale or discount, in each case without recourse, of past due receivables accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice thereof;
(i) the lapse of registered patents, trademarks, copyrights and not as part other Intellectual Property of any bulk sale Loan Party or financing any of receivablesits Subsidiaries to the extent no longer used or useful or not economically desirable in the conduct of its business, or (ii) the abandonment of patents, trademarks, copyrights, or other Intellectual Property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii),
), (vA) Investments made in accordance with Section 11.9,
respect to copyrights, such copyrights are not material revenue generating copyrights, and (viB) Liens incurred in compliance with Section 11.2,such lapse is not materially adverse to the interests of the Secured Parties;
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no Event of Default has occurred and is continuing or would immediately result therefrom, transfers of assets from any Subsidiary of any Loan Party that is not a Loan Party to any other Subsidiary of any Loan Party;
(viii) sales, leases, assignments, conveyances, other transfers for value and dispositions of assets, in each case, that constitute a Permitted Asset Disposition;
(ix) subject to the absence of any Default or Event of Default that is continuing or would immediately result therefrom, other Asset Dispositions of Borrower and its Subsidiaries for fair market value in an aggregate amount not to exceed $2,500,000 in any Fiscal Year; provided that with respect to any single Asset Disposition or series of related Assets Dispositions involving assets having a fair market value in excess of $500,000, at least 75% of the consideration for such modificationAsset Disposition, replacementshall consist of Cash or Cash Equivalent Investments; provided further, renewal or extension increases that the amount Net Cash Proceeds of such Investment except Asset Disposition shall be applied and/or reinvested as (and to the extent) required by this Agreement; and provided, further, that Asset Dispositions pursuant to this clause (ix) may not include any Intellectual Property material to the terms operation of Borrower’s business;
(x) issuance by Parent or any of its Subsidiaries of its Equity Interests so long as no Change of Control will occur as a result thereof and such issuance is otherwise permitted hereunder;
(xi) dispositions of receivables to an SPV Financing Entity in effect on the Effective Date connection with a receivables factoring, receivable sale or similar transaction (including any warehouse financing);
(xii) any termination or unwinding of any Permitted Bond Hedge Transaction solely to the extent the cash amount payable by Loan Parties as a result of such terminations does not exceed $5,000,000 in the accrual or accretion aggregate; and
(xiii) any disposition of interest or original issue discount or the issuance of pay-in-kind securities) or as Cash and Cash Equivalent Investments in connection with a transaction otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andAgreement.
Appears in 1 contract
Samples: Credit Agreement (Moneylion Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (aA) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other PersonPerson or engage or participate in any Joint Venture, (B) except for Investments otherwise permitted as contemplated by clause (E) of this Section 11.9,
(b) below, sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory inventory, excess equipment, and obsolete equipment in the ordinary course of business business, (C) sell, transfer or assign any portion of the Real Estate Collateral unless in connection therewith unless the Net Cash Proceeds received are applied to the Obligations as set forth in this Agreement and the Guaranty and Collateral Agreement, (D) sell, transfer or assign the Capital Securities of any of the Canadian Entities or the Mexican Entity, or all or substantially all of the assets of any of the Canadian Entities or the Mexican Entity, unless the Net Cash Proceeds received are applied to the Obligations as set forth in this Agreement and the Guaranty and Collateral Agreement, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(cE) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; or (iii) any Subsidiary may liquidateother Acquisition, dissolve or wind-up if including a Joint Venture, by the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(Aa) the Acquisition business or division acquired or invested in is of a for use, or the Person acquired or invested in a line of business which is similar engaged, in the businesses engaged in by the Loan Parties on the Closing Date or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Datereasonably related thereto;
(Bb) at the time of the consummation of such Acquisition, the Administrative Agent shall have received a certificate from a Senior Officer certifying that immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would is reasonably likely to occur as a result of such Acquisition, and that such Acquisition is permitted hereunder, together with a pro forma Compliance Certificate;
(c) the board of directors or similar governing body of the target company has approved such Acquisition (other than a Joint Venture), and such acquisition is friendly, rather than hostile, in nature;
(d) (i) for any Material Acquisition, not less than 10 Business Days (or such shorter period as may be agreed to in writing by the Administrative Agent) prior to the closing of such Acquisition, the Administrative Agent shall have received complete executed or conformed copies if available, or drafts in substantially final form, of each material document, instrument and agreement executed or to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens (other than Permitted Liens) on the assets or business to be acquired or contributed to a Joint Venture, and (ii) for any Acquisition that is not a Material Acquisition, not less than 10 Business Days prior to the closing of such Acquisition or as soon as otherwise available, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition, or if not available drafts thereof, but promptly upon being available (which may be at any time prior to the closing of such Acquisition) executed copies thereof, together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens (other than Permitted Liens) on the assets or business to be acquired or contributed to the Joint Venture;
(e) not less than 10 Business Days prior to such Acquisition, the Administrative Agent shall have received (i) an acquisition summary with respect to the Person and/or business or division to be acquired or invested in, such summary to include a reasonably detailed description thereof (including financial information) and operating results, if any (including financial statements for the most recent 12 month period for which they are available and as otherwise available), (ii) Uniform Commercial Code, tax and judgment searches from the appropriate jurisdictions (including, unless otherwise agreed to in writing by Administrative Agent, with respect to the other investors in a Joint Venture), (iii) the terms and conditions, including economic terms, of the proposed Acquisition, (iv) the Company’s calculation of pro forma EBITDA relating thereto and the delivery of a pro-forma consolidated balance sheet, statement of cash flows and income statement adjusted after giving effect to the consummation of the proposed Acquisition, and (v) copies of the audited financial statements (if available, or unaudited financial statements if no audited financial statements exist, or none if a new Joint Venture) for the target company for the three fiscal years (if available) most recently ended and for each of the completed fiscal quarters in the then current fiscal year. The proforma financial statements referred to in this clause shall contain consolidated and consolidating balance sheets, income statements, statements of cash flows and such other reports and disclosures of the Company as well as the target company and/or Joint Venture and shall cover such forecast periods, as Administrative Agent may in its reasonable discretion require;
(f) simultaneously with the closing of such Acquisition, the target company (if such Acquisition is structured as a purchase of equity), or the Loan Party (if such Acquisition is structured as a purchase of assets or a merger and a Loan Party is the surviving entity), shall execute and deliver to Administrative Agent (unless waived by Administrative Agent) (a) such documents, Collateral Access Agreements, pledges, security agreements, notes, and other agreements, certificates and opinions necessary to grant to Administrative Agent for the benefit of the Lenders a first priority Lien (subject to Permitted Liens) in all of the assets of such target company or surviving company, including the equity thereof, and their respective Subsidiaries, including the equity thereof, each in form and substance satisfactory to Administrative Agent, (b) an unlimited guaranty of the Obligations, or at the option of Administrative Agent in Administrative Agent’s absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company, and their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations, and (c) a collateral assignment by the Loan Party of rights in favor of Administrative Agent with respect to the Acquisition Documents for such Acquisition and the Administrative Agent and the Lenders shall be permitted to rely on the legal opinions delivered by such Loan Party in connection with such Acquisition, provided, however, any Person that is a Joint Venture shall not be obligated to xxxxx x Xxxx on its assets but, if (I) such Joint Venture is a Material Acquisition, the applicable Loan Party investing in such Joint Venture shall pledge its Capital Securities in such Joint Venture and collaterally assign its rights with respect thereto, and (II) such Joint Venture is not a Material Acquisition, the applicable Loan Party investing in such Joint Venture shall pledge its Capital Securities in such Joint Venture and collaterally assign its rights with respect thereto unless prohibited by the governing documents for such Joint Venture with respect to all investors in such Joint Venture;
(g) if the Acquisition is structured as a merger, the Company or another Loan Party is the surviving entity;
(h) the provisions of Section 10.9 have been satisfied to the extent the Acquisition results in a new Loan Party;
(i) for any Acquisition (other than a Joint Venture that is new and not a Joint Venture with an existing operating Person or division thereof) with an aggregate purchase price greater than $5,000,000 (including without limitation any deferred purchase price, seller notes, assumed Debt, or similar items), the target company has an EBITDA (provided, however, that with respect to the purchase of assets of less than an entire target company, EBITDA will be calculated on a proforma basis prepared in good faith based on reasonable assumptions) in excess of zero Dollars for the twelve month period ended on the last day of the calendar month most recently ended prior to the date such acquisition is consummated; and
(Cj) in (A) if, both immediately before and after giving effect to the case proposed Acquisition, on a pro forma basis (i) the Total Leverage Ratio as of the Acquisition of any Person, then most recently ended fiscal quarter or fiscal month for the twelve month period then ended is less than 2.00 to 1.00 and (ii) the extent that an Acquisition which is structured Loan Parties have at least $20,000,000 in Minimum Liquidity as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests most recently completed fiscal quarter or assets fiscal month (provided, however, that $10,000,000 Minimum Liquidity shall be required only during the third fiscal quarter of Central Health Plan of California2010), Inc. and Universal Carethen there shall be no dollar limitations on Acquisitions, Inc. provided, however, if the condition in clause (d/b/a Brand New Day). All sales, transfers or dispositions made by i) is met but the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by condition in clause (ii) is not met for the applicable period, then the Company and the other Loan Parties may complete Acquisitions up to $5,000,000 in the aggregate in such fiscal year, and (B) if, both immediately before and after giving effect to the Acquisition, on a pro forma basis (y) Total Leverage Ratio is greater than or equal to 2.00 to 1.00 and (iiiz) the Loan Parties have at least $20,000,000 in Minimum Liquidity (or, if the applicable determination date is in the third fiscal quarter of 2010, at least $10,000,000 Minimum Liquidity)) , then Acquisitions shall be made limited to $15,000,000 in the aggregate in each fiscal year, provided, however, if the condition in clause (y) is met but the condition in clause (z) is not met for fair value and for at least 75% cash considerationthe applicable period, andthen no Acquisitions shall be permitted.
Appears in 1 contract
Samples: Credit Agreement (Cpi Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) its assets except for sales of inventory and obsolete equipment Inventory in the ordinary course of business or (ii) so long as no Unmatured Event Capital Securities (including the sale of Default Capital Securities of any Subsidiary) that would result in a Change of Control, or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary of any Operating Borrower into the Company (provided that the Company shall be the continuing such Borrower or surviving entity) or into any other Subsidiary;
domestic Wholly-Owned Subsidiary of such Borrower; (ii) any such purchase or other acquisition by the Company any Operating Borrower or any domestic Wholly-Owned Subsidiary of such Borrower of the assets or Equity Interests Capital Securities of any Subsidiary;
Wholly-Owned Subsidiary of such Borrower; (iii) any Subsidiary may liquidate, dissolve or wind-up if sales and dispositions of assets (excluding the Company determines in good faith that such liquidation or dissolution is in Capital Securities of Subsidiaries) for at least fair market value (as determined by the best interests Board of Directors of the Company and is not materially disadvantageous to the Lenders;
(ivBorrowers) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal the value of all assets sold or extension increases otherwise disposed of under this clause (iii) in any Fiscal Year does not exceed $100,000 in the amount of such Investment except by the terms thereof in effect on the Effective Date aggregate; and (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiiiv) any Acquisition by the Company, any Subsidiary Borrower or any Insurance domestic Wholly-Owned Subsidiary where:of such Borrower that satisfies each of the following requirements (herein, a “Permitted Acquisition”):
(A) the Acquisition is business or division acquired comprises a business, or those assets of a Person in a line of business which is similar or complementary to the lines of business business, of the Company and its Subsidiaries as of type engaged in, or owned by, Borrowers on the Effective Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist exist;
(C) the aggregate consideration to be paid in connection with all Permitted Acquisitions consummated in any Fiscal Year (including any Debt assumed or would result issued in connection therewith) does not exceed $50,000,000;
(D) immediately after giving effect to such Acquisition, the Borrowers are in pro forma compliance with the covenants contained in Section 11.14 recomputed as of the last day of the most recently ended Computation Period of the Loan Parties as if such Acquisition had occurred on the first day of such Computation Period for testing such compliance;
(E) the Acquisition shall be consensual and shall have been approved by the board of directors or similar governing body of the Person and/or business or division being acquired;
(F) prior to such Acquisition, the Administrative Agent shall have received copies of each material document, instrument and agreement to be executed in connection with such Acquisition (with draft copies as and when reasonably available) together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business being acquired;
(G) not less than ten (10) Business Days prior to such Acquisition, the Administrative Agent shall have received (x) an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Borrowers’ calculation of Adjusted EBITDA relating thereto and (y) financial projections for Holdings and its Subsidiaries for the next two Fiscal Years (including quarterly operating and cash flow budgets), prepared on a pro forma basis after giving effect to such Acquisition, together with a certificate in the form described in Section 10.1.8, which projections shall demonstrate compliance with the provisions of Section 11.14 for the periods covered hereby;
(H) the Administrative Agent shall have approved the Borrowers’ computation of Adjusted EBITDA (including the computation of Pro Forma Target EBITDA in respect of such Acquisition);
(I) consents shall have been obtained in favor of the Administrative Agent to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Loan Parties and (if delivered to the Loan Party) the selling party in favor of the Administrative Agent and the Lenders have been delivered;
(J) simultaneously with the closing of such Acquisition, the target company (if such Acquisition is structured as a purchase of equity) or the Loan Party (if such Acquisition is structured as a purchase of assets or a merger and a Loan Party is the surviving entity) shall have executed and delivered to Administrative Agent (a) such documents necessary to grant to Administrative Agent for the benefit of the Lenders a first priority Lien in all of the assets of such target company or surviving company and their respective Subsidiaries, each in form and substance satisfactory to Administrative Agent and (b) an unlimited Guaranty of the Obligations or, at the option of Administrative Agent in Administrative Agent’s absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company and their respective Subsidiaries become borrowers under this Agreement and assume primary, joint and several liability for the Obligations;
(K) if the Acquisition is structured as (i) a purchase of assets, the purchaser in such Acquisition shall be an Operating Borrower, (ii) a merger, an Operating Borrower shall be the surviving entity of such merger and (iii) a purchase of Capital Securities, no less than one hundred percent (100%) of the Capital Securities of the Person being acquired shall be purchased in connection therewith, and the Person being acquired shall be organized under the laws of the United States or any State hereof (it being understood and agreed that a Holdco Borrower may consummate a Permitted Acquisition that is structured only as a purchase of Capital Securities);
(L) the Person and/or business or division to be acquired shall have net income greater than $0 for the trailing four fiscal quarter period immediately preceding the consummation of the Acquisition, as determined based upon such target’s financial statements for its most recent fiscal quarter completed within 30 days prior to the consummation of such Acquisition; and
(CM) in Revolving Loan Availability exceeds the case Revolving Outstandings by not less than $3,000,000, after giving effect to the consummation of the Acquisition and the making of any PersonRevolving Loans and the payment of all fees, expenses and costs in connection therewith. Upon request by Administrative Agent, Borrowers shall deliver certifications to Administrative Agent, in form and content reasonable to Administrative Agent, with respect to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) satisfaction of any sale, transfer or disposition all of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andrequirements set forth above.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business ), or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Company or Wholly-Owned Subsidiary of a Company into the a Company (provided that the Company shall be the continuing or surviving entityother than Technologies) or into any other Subsidiary;
domestic Wholly-Owned Subsidiary of a Company; (ii) any such purchase or other acquisition by the a Company or any domestic Wholly-Owned Subsidiary of a Company of the assets or Equity Interests Capital Securities of any Subsidiary;
Company (other than Technologies) or any Wholly-Owned Subsidiary of a Company; or (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by a Company in respect of which the Companyrequirements of Section 10.9 and Section 10.11 have been satisfied, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition business, divisions or operating units acquired are for use, or the Person acquired is of a Person in a line of business which is similar engaged or reasonably related or complementary to thereto, in the lines of business of businesses engaged in by Loan Parties on the Company and its Subsidiaries as of the Effective Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default on an actual or pro forma basis shall exist or would result of such Acquisition; andtherefrom;
(C) the aggregate consideration to be paid by the Companies (including Acquired Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP, and the fair market value of any non-cash consideration) in connection with (1) such Acquisition (or any series of related Acquisitions) is less than $10,000,000 in any given transaction (or series of related transactions) and (2) all Acquisitions after the Closing Date is less than $30,000,000 in the aggregate;
(D) immediately after giving effect to such Acquisition the Companies and their respective Subsidiaries are in pro forma compliance with the financial ratios set forth in Section 11.14;
(E) in the case of the Acquisition of any Person, the governing body of such Person has approved such Acquisition;
(F) in connection with such Acquisition, the Administrative Agent shall have received complete executed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of liens on the assets or business to be acquired;
(G) reasonably prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent twelve (12) month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the calculation of pro forma compliance with the financial ratios set forth in Section 11.14;
(H) Administrative Agent shall have approved the computation of pro forma compliance with the financial ratios and restrictions set forth in Section 11.14;
(I) consents, if necessary, have been obtained in favor of Administrative Agent and the Lenders to the granting of a security interest and/or the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Loan Parties and/or relevant Subsidiaries and, if delivered to the Loan Parties or any such Subsidiary, of the selling party allowing reliance thereon by the Administrative Agent and the Lenders have been delivered and the applicable Company shall have executed an agreement providing for the granting of a security interest in, and the collateral assignment to the Administrative Agent of, such Company's rights and indemnities under the related acquisition documents;
(J) if such Acquisition is structured as an acquisition of equity interests of a Person, (i) such Person which is organized under the laws of the United States of America or any state (or the District of Columbia) thereof, or Canada or any province thereof, (ii) such Acquisition is of one hundred percent of the equity interests of a Person (and in respect of which the provisions of Section 10.11 will be complied with), or is made through a domestic Wholly-Owned Subsidiary which acquires one hundred percent of the equity interests of such Person, and (iii) the provisions of Section 10.11 have been satisfied with respect to all such Persons and its Subsidiaries or such newly-formed Subsidiary concurrently with or prior to such Acquisition;
(K) if such Acquisition is structured as an acquisition of assets, such assets are located in the United States of America or Canada;
(L) if the assets acquired in such Acquisition are intended to be included in the Borrowing Base, the Administrative Agent must provide its prior written approval, upon its review of such assets including, without limitation, its review of such field examinations, audits, appraisals and other due diligence as the Administrative Agent shall require in its reasonable discretion in good faith; it being acknowledged and agreed that an (i) the Administrative Agent may require that the acquired assets be held in a separate domestic Wholly-Owned Subsidiary which shall be deemed a Guarantor and (ii) such additional assets, if any, included in the Borrowing Base may be subject to different advance rates or may require the imposition of additional reserves with respect thereto; and
(M) if the Acquisition which is structured as a merger involving the Companymerger, the Company party thereto is the surviving Person, and
entity. (ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to such Acquisition described in this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andbeing a "Permitted Acquisition").
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales and leases of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve or wind-up if sales and dispositions of assets for at least fair market value (as determined by the Company determines in good faith that such liquidation or dissolution is in the best interests Board of Directors of the Company and is Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not materially disadvantageous to exceed 10% of the Lenders;
net book value of the consolidated assets of the Loan Parties as of the last day of the preceding Fiscal Year; (iv) the discount or sale, in each case without discounting of non-recourse and leases in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (; and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance domestic Wholly-Owned Subsidiary where:
(A) the Acquisition business or division acquired are for use, or the Person acquired or invested in is of a Person engaged, in a line of business which is similar or complementary to engaged in by a Loan Party on the lines of business of the Company and its Subsidiaries as of the Effective Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of such Acquisition; andexist;
(C) the aggregate consideration to be paid by the Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (or any series of related Acquisitions) is less than $10,000,000 individually and the aggregate consideration for all Acquisitions by the Loan Parties since the Closing Date does not exceed $10,000,000;
(D) immediately after giving effect to such Acquisition, (i) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Sections 11.15, 11.16 and 11.17 and (ii) Loan Availability minus Outstandings is greater than or equal to $5,000,000;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) reasonably prior to such Acquisition, Agent and each Lender shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as Agent or such Lender may require to evidence the termination of Liens on the assets or business to be acquired if applicable;
(G) not less than ten (10) Business Days prior to such Acquisition, Agent and each Lender shall have received an acquisition summary with respect to the extent that an Acquisition Person and/or business or division to be acquired or invested in, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which is structured they are available and as a merger involving otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company, ’s calculation of pro forma EBITDA relating thereto;
(H) consents have been obtained in favor of Agent and each Lender to the Company is collateral assignment of rights and indemnities under the surviving Person, related acquisition documents and opinions of counsel for the Loan Parties and (if delivered to the Loan Party) the selling party in favor of Agent and each Lender have been delivered; and
(ixI) any sale, transfer or disposition the provisions of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and10.10 have been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Winmark Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Loan Parties and their Subsidiaries to,
, (a) be a party to any merger merger, amalgamation, statutory division, or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (ix) for sales of inventory and obsolete equipment in the ordinary course of business or Permitted Acquisitions, (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(iy) any such merger, amalgamation, statutory division, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing Borrower or surviving entity) into any other domestic Wholly-Owned Subsidiary or any other Subsidiary;
Borrower into another Borrower and (iiz) any such purchase merger of a non-Wholly Owned Subsidiary into Borrower or other acquisition by another Loan Party so long as both before and after giving effect to such merger the Company Loan Parties are in compliance with the negative covenants set forth in Section 11 (including the covenants in Section 11.14); or (b) sell, transfer, dispose of, convey or lease any Subsidiary of the its assets or Equity Interests Capital Securities (including the sale of Capital Securities of any Subsidiary;
, but excluding Capital Securities of Intermediate Holdings or Holdings) except for (iiii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests sales of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and inventory in the ordinary course of business, (ii) the disposition of past due receivables arising any asset which is to be replaced and is in fact replaced, or a binding contract is in place to replace, within 180 days with another asset useful in the Loan Parties’ business (so long as Administrative Agent has a first priority and perfected Lien on any newly-acquired asset, subject to Permitted Liens), (iii) a disposition of Collateral that is obsolete, unmerchantable or otherwise unsalable or unusable in the ordinary course of business (including the lapse, abandonment, or disposition of any intellectual property rights that are no longer material to the conduct of the business of the Loan Parties, or expiration of any patent or copyright in accordance with its statutory term), (iv) the discount, write-down, sale or other disposition in the ordinary course of business of trade or accounts receivable, (v) dividends, distributions and payments by Loan Parties, in each case solely to the extent permitted by Section 11.4 of this Agreement, (vi) sales, leases, licenses or other transfers of assets between or amongst the Loan Parties, (vii) dispositions of cash and Cash Equivalent Investments, (viii) termination, surrender or sublease of real estate in the ordinary course of business, but only (ix) the granting of leases, licenses, subleases or sublicenses of real property or intellectual property (as lessor or licensor) in connection with the compromise ordinary course of business the Net Cash Proceeds of which do not in the aggregate exceed $750,000, (x) dispositions constituting Permitted Acquisitions and Permitted Liens, (xi) transfers of property subject to any event that gives rise to the receipt by Borrower or collection thereof consistent with customary industry practice (and not as part any Subsidiary of any bulk insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property, (xii) the unwinding of any Hedging Obligations, (xiii) other dispositions in any Fiscal Year the Net Cash Proceeds of which do not in the aggregate exceed $1,500,000 or (c) sell or assign with or without recourse any receivables, except for the discount, write-down, sale or financing other disposition in the ordinary course of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) business of trade or accounts receivable. To the extent any Acquisition (a) existing on, or contractually committed to or contemplated Collateral is disposed of as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise expressly permitted by this Section 11.4,
(viii) 11.5 to any Acquisition Person other than a Loan Party, such Collateral shall be sold free and clear of the Liens created by the CompanyLoan Documents, any Subsidiary or any Insurance Subsidiary where:
(A) and, if requested by the Acquisition Administrative Agent, upon the certification by the Borrower that such disposition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Companypermitted by this Agreement, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) Administrative Agent shall be made for fair value and for at least 75% cash consideration, andauthorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary ------------------------------ to,
(a) , be a party to any merger or consolidation, liquidate or dissolve, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any merger, such merger or consolidation, sale, transfer, conveyance, lease lease, liquidation, dissolution, or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) into, with or to any other Wholly-Owned Subsidiary;
, (ii) any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary of the assets or Equity Interests stock of any Wholly- Owned Subsidiary;
, (iii) any Subsidiary may liquidatesubject to compliance with the conditions in Section ------- 11.1, dissolve or wind-up if 11.2 and 11.3, the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
Recapitalization Merger, (iv) the discount or sale, in each case without recourse and in the ordinary course Investments (including ---- ---- ---- Investments by way of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
merger) permitted by Section 10.11; (v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification------------- Event of Default or Unmatured Event of Default has occurred and is continuing or would result therefrom, replacement, renewal or extension increases the amount sale of such Investment except by the terms thereof in effect on the Effective Date assets (including as a result the sale of stock of any Subsidiary); provided that the aggregate proceeds of all sales of assets in any one Fiscal Year shall not exceed an amount equal to 10% of the accrual or accretion consolidated book value of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business assets of the Company and its Subsidiaries Subsidiaries, as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result beginning of such Acquisition; Fiscal Year, and
(C) , in the case of the Acquisition sale of any Person, to stock of a Subsidiary or the extent that an Acquisition which is structured as sale of substantially all of the assets of a merger involving the CompanySubsidiary or division, the Company is the surviving Person, and
(ix) any sale, transfer or disposition consolidated net income of the Equity Interests Company for the prior Fiscal Year attributable to such Subsidiary or assets division shall not exceed an amount equal to 5% of Central Health Plan the total consolidated net income of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made and its Subsidiaries, for fair value and for at least 75% cash consideration, andthe prior Fiscal Year.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
(a) , be a party to any merger or consolidation, or make any Acquisition, purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, in any other PersonPerson (other than a Person that is, except for Investments otherwise permitted by Section 11.9,
(b) or becomes as the result of purchase or acquisition, a Subsidiary), or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment (i) of or by any Loan Party into, with or to the Company or another Loan Party, (ii) of or by any wholly-owned Subsidiary into the Company or any other Loan Party or into, with or to any wholly-owned Domestic Subsidiary, (iii) of or by any wholly-owned Foreign Subsidiary into any other wholly-owned Foreign Subsidiary or (iv) of or by the Company into any wholly-owned Domestic Subsidiary (provided that (x) in each of the foregoing clauses (i), (ii) and (iv), in the case of any such merger or consolidation to which the Company shall be is a party, the Company is the surviving or continuing entity and survives or continues, as the case may be, as the ultimate parent company in the Company’s organizational structure and (y) subject to clause (x) above, in the case of clause (ii), in the case of any such merger or consolidation to which a Subsidiary Guarantor is a party, the Subsidiary Guarantor is the surviving or continuing entity) or any other Subsidiary;
(iib) any such purchase or other acquisition by the Company or any Subsidiary Loan Party of the assets or Equity Interests stock of any wholly-owned Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if Permitted Acquisitions and the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersAcquisition;
(ivd) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(e) dispositions of inventory and worn-out, obsolete or surplus equipment in the discount or saleordinary course of business and cash, in each case without recourse cash equivalents and marketable securities in the ordinary course of business;
(f) dispositions of accounts receivable with extended terms and dispositions of defaulted accounts receivable without credit recourse in transactions that do not constitute securitizations, of past due receivables arising in each case in the ordinary course of business, but only business consistent with past practice of Parent and its Significant Subsidiaries;
(g) sales and dispositions of assets (including stock of Subsidiaries) purchased in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),a direct result of) a Permitted Acquisition;
(vh) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date purchases and (b) any modification, replacement, renewal or extension other acquisitions of any Investment described in clause (a) above such partnership and joint venture interests so long as no such modification, replacement, renewal or extension increases the aggregate amount of investments (net of any cash returns thereon) in such Investment except partnerships and joint ventures does not, on the date any such investment is made, exceed 20% of the consolidated tangible assets of Parent and its Subsidiaries;
(i) sales and dispositions of Equity Interests in any Lender acquired by virtue of any Bail-In Action or similar regulatory action;
(j) other sales and dispositions of assets (including the stock of Subsidiaries) made for fair market value so long as (i) no Unmatured Event of Default pursuant to Section 12.1.1 or Event of Default exists or would exist immediately after giving effect thereto, (ii) in respect of any such sales or dispositions involving consideration of at least $10,000,000, at least 75% of such consideration is in the form of cash or cash equivalents (it being understood and agreed that for purposes of this Section 10.9(j), each of the following will be deemed to be cash: (A) any liabilities, as shown on the most recent consolidated balance sheet of Parent or any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Obligations) that are assumed by the terms thereof in effect on transferee of any such assets pursuant to a customary assignment and assumption or novation agreement that releases Parent or such Subsidiary from further liability with respect thereto; (B) any securities, notes or other obligations or assets received by Parent or any such Subsidiary from such transferee that are converted by Parent or such Subsidiary into cash or cash equivalents within 180 days of the Effective Date sale or disposition; and (including C) Debt of any Subsidiary that ceases to be a Subsidiary of the Company as a result of the accrual sale or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary disposition to the lines of business of the Company extent that Parent and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result are released from any guarantees of such AcquisitionDebt); and (iii) the Net Cash Proceeds of all such sales and dispositions are applied to prepay the Loans pursuant to Section 6.2.4(a) to the extent required thereby; and
(Ck) any sale or disposition required by any applicable law, rule, regulation, or Governmental Authority in connection with the case consummation of the Acquisition of any Person, to the extent that an Company Acquisition which is structured as a merger involving such sale or disposition shall be for fair market value. For the Companyavoidance of doubt, the Company is granting of a Lien to secure the surviving Personrepayment of Debt or other obligations shall not, and
(ix) any salein and of itself, constitute a conveyance or transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and10.9.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to,
, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,
in all cases other than: (bi) sellany such merger, consolidation, sale, transfer, convey acquisition, conveyance, lease, or lease all assignment of or substantially all of its assets (including the sale of all by any Borrower or substantially all of the Equity Interests of Subsidiary with and into any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business Borrower or (ii) any Subsidiary so long as (t) no Unmatured Event other provision of this Agreement would be violated thereby, (u) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing or
(c) sell either before or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisitionthat transaction, no Event of Default shall exist or would result of such Acquisition; and
and (Cz) the Lenders’ rights in any Collateral, including the case of the Acquisition existence, perfection and priority of any PersonLien thereon, to the extent are not adversely affected by that an Acquisition which is structured as a merger involving the Companyor consolidation, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or Permitted Acquisitions, and (iii)) shall be made for fair value and for at least 75% cash consideration, andPermitted Asset Dispositions.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of among or by any Subsidiary into between the Company (and any of the Guarantors, provided that that, in connection with any merger or consolidation involving the Company, the Company shall be the continuing or surviving entity) or any other Subsidiary;
corporation and shall assume all obligations hereunder; (iib) any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary of the assets or Equity Interests stock of any Wholly-Owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiic) any Acquisition by the Company, any Subsidiary Company or any Insurance Wholly-Owned Subsidiary where:
where (Ai) the Acquisition assets acquired (in the case of an asset purchase) are for use, or the Person acquired (in the case of any other Acquisition) is of a Person engaged, primarily in a line of business which is similar the marketing services businesses or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
related business; (Bii) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist exist; (iii) immediately after giving effect to such Acquisition and all Debt, if any, assumed or would result issued in connection therewith, the Company is in pro forma compliance with a Total Funded Debt to EBITDA ratio of such Acquisition2.25 to 1.0 and a Fixed Charge Coverage Ratio of 1.75 to 1.0; and
and (Civ) in the case of the Acquisition of any Person, if applicable, the Board of Directors of such Person has approved such Acquisition; and (d) sales and dispositions of assets (including the stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed 5% of the net book value of the consolidated assets of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year. Notwithstanding anything herein to the extent that an Acquisition which is structured as a merger involving the Companycontrary, the Company is the surviving Person, and
(ix) any sale, transfer or disposition aggregate amount of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (iicash) or (iii)) transferred to all Subsidiaries that are not Wholly-Owned Subsidiaries shall be made for fair value and for at least 75% cash consideration, andnot exceed $25,000,000.
Appears in 1 contract
Mergers, Consolidations, Sales. (a) Not, and not permit any Restricted Subsidiary to,to consolidate with or merge with any other Person unless immediately after giving effect to any consolidation or merger no Event of Default or Ummatured Event of Default would exist and:
(ai) in the case of a consolidation or merger of a Restricted Subsidiary, (x) the Company or another Restricted Subsidiary is the surviving or continuing corporation, (y) the surviving or continuing corporation is or immediately becomes a Restricted Subsidiary, or (z) such consolidation or merger, if considered as the sale of the assets of such Restricted Subsidiary to such other Person, would be permitted by Section 10.13(c); and
(ii) in the case of a party consolidation or merger of the Company, the successor corporation or surviving corporation which results from such consolidation or merger (the "surviving corporation"), if not the Company, (A) is a solvent United States corporation, (B) executes and delivers to each Lender its assumption of (x) the due and punctual payment of the principal of and premium, if any, and interest on the Loans, and (y) the due and punctual performance and observation of all of the covenants in this Agreement and each other Loan Document to be performed or observed by the Company, and (C) furnishes to each Lender an opinion of counsel, reasonably satisfactory to the Required Lenders, to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of the surviving corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(b) Not sell, lease (as lessor) or otherwise transfer all or substantially all of its assets in a single transaction or series of transactions to any merger Person unless immediately after giving effect thereto no Event of Default or consolidationUnmatured Event of Default would exist and:
(i) the successor corporation to which all or substantially all of the Company's assets have been sold, leased or purchase transferred (the "successor corporation") is a solvent United States corporation, and
(ii) the successor corporation executes and delivers to each Lender its assumption of the due and punctual payment of the principal of and premium, if any, and interest on the Loans, and the due and punctual performance and observation of all of the covenants in this Agreement and each other Loan Document to be performed or otherwise acquire observed by the Company and shall furnish to the Administrative Agent an opinion of counsel, reasonably satisfactory to the Required Lenders, to the effect that the instrument of assumption has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such successor corporation enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. No such conveyance, transfer or lease of all or substantially all of the assets of the Company shall have the effect of releasing the Company or any Equity Interests of any class of, successor corporation that shall theretofore have become such in the manner prescribed in this Section 10.13 from its liability under this Agreement or any partnership or joint venture interest in, any the other Person, except for Investments otherwise permitted by Section 11.9,Loan Documents.
(bc) Not, and not permit any Restricted Subsidiary to, sell, lease (as lessor), transfer, convey abandon or lease all or substantially all otherwise dispose of its assets (including to any Person; provided that the sale of all or substantially all of the Equity Interests of any Subsidiary) except foregoing restrictions do not apply to:
(i) for sales the sale, lease, transfer or other disposition of inventory and obsolete equipment assets of the Company to a Wholly-Owned Restricted Subsidiary or of a Restricted Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary;
(ii) the sale in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, inventory held for sale, transferor equipment, conveyancefixtures, lease supplies or assignment materials that are no longer required in the operation of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by business of the Company or any Restricted Subsidiary of the assets or Equity Interests of any Subsidiaryare obsolete;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the sale of property of the Company determines or any Restricted Subsidiary and the Company's or any Restricted Subsidiary's subsequent lease, as lessee, of the same property, within 270 days following the acquisition or construction of such property;
(iv) the sale of assets of the Company or any Restricted Subsidiary for cash or other property to a Person or Persons (other than an Affiliate) if (A) such assets (valued at net book value) do not constitute a "substantial part" (as defined below) of the assets of the Company and the Restricted Subsidiaries, (B) in good faith that such liquidation or dissolution the opinion of a Responsible Officer of the Company, the sale is for fair value and is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or saleCompany, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(BC) immediately after giving effect to such Acquisitionthe transaction, no Event of Default shall exist or Unmatured Event of Default would result exist; or
(v) the sale of such Acquisition; and
assets meeting the conditions set forth in clauses (B) and (C) of clause (iv) above, as long as the net proceeds from such sale in excess of a "substantial part" (as defined below) of the assets of the Company and the Restricted Subsidiaries are (x) applied within 270 days of the date of receipt to the acquisition of productive assets useful and intended to be used in the case operation of the Acquisition business of the Company or the Restricted Subsidiaries, or (y) used to repay any Indebtedness of the Company or the Restricted Subsidiaries (other than Indebtedness that is in any manner subordinated in right of payment or security in any respect to Indebtedness hereunder, Indebtedness owing to the Company, any of its Subsidiaries or any Affiliate and Indebtedness in respect of any Personrevolving credit or similar credit facility providing the Company or any of the Restricted Subsidiaries with the right to obtain loans or other extensions of credit from time to time, except to the extent that in connection with such payment of Indebtedness the availability of credit under such credit facility is permanently reduced not later than 270 days after the date of receipt of such proceeds by an Acquisition which is structured amount not less than the amount of such proceeds applied to the payment of such Indebtedness).
(d) For purposes of Section 10.13(c), a sale of assets will be deemed to involve a "substantial part" of the assets of the Company and the Restricted Subsidiaries if the book value of such assets, together with all other assets sold during such fiscal year (except those assets sold pursuant to clauses (i) through (iii) of Section 10.13(c)), exceeds 10% of the Consolidated Total Assets of the Company and the Restricted Subsidiaries determined as a merger involving of the end of the immediately preceding fiscal year.
(e) Not, and not permit any Restricted Subsidiary to, issue shares of stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into stock) of any Restricted Subsidiary except (i) to the Company, (ii) to a Wholly-Owned Restricted Subsidiary, (iii) to any Restricted Subsidiary that owns equity in the Restricted Subsidiary issuing such equity, or (iv) with respect to a Restricted Subsidiary that is a partnership or joint venture, to any other Person who is a partner or equity owner if such issuance is made pursuant to the terms of the Joint Venture Agreement or Partnership Agreement entered into in connection with the formation of such partnership or joint venture; provided that Restricted Subsidiaries may issue directors' qualifying shares and shares required to be issued by any applicable foreign law regarding foreign ownership requirements. The Company will not, and will not permit any Restricted Subsidiary to sell, transfer or otherwise dispose of its interest in any stock (or any options or warrants to purchase stock or other Securities exchangeable for or convertible into stock) of any Restricted Subsidiary (except to the Company is the surviving Person, and
(ixor a Wholly-Owned Restricted Subsidiary) any unless such sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Daywould be permitted under Section 10.13(c). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit Consolidate with or merge into any Subsidiary to,
(a) be a party other Person or convey or transfer its properties substantially as an entirety to any merger or consolidationPerson, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey lease or lease all or substantially all otherwise dispose of any substantial portion of its assets (including the sale in one transaction or a series of all or substantially all of the Equity Interests of any Subsidiary) except related transactions, except:
(i) for (A) any merger, consolidation or sale of its assets substantially as an entirety in which the Person formed by such consolidation or into which the Borrower is merged or the Person which acquires by conveyance or transfer the properties and assets of the Borrower substantially as an entirety, shall be a corporation, partnership or limited liability company organized and existing under the laws of the United States or any state or the District of Columbia, and shall expressly assume the due and punctual payment of the principal of and interest on all the Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed or observed, and immediately after giving effect to such transaction, no Event of Default or Unmatured Event of Default shall have occurred and be continuing, (B) any merger of a Subsidiary into the Borrower in a transaction in which the Borrower is the surviving Person, (C) any merger of a Subsidiary into another Subsidiary in a transaction in which the surviving Person is a wholly owned Subsidiary, (D) any sales, transfers, leases or dispositions by a Subsidiary of its assets to the Borrower or to another wholly owned Subsidiary;
(ii) sales of inventory (including, without limitation, crude oil, condensate, natural gas liquids and/or natural gas) and obsolete used or surplus equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiarybusiness;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersRestricted Payments permitted under Section 6.02(d) hereof;
(iv) loans made by the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not Borrower to Occidental as part of any bulk sale or financing of receivables),permitted under Section 6.02(e) hereof;
(v) Investments made sales, transfers, conveyances and other dispositions described in accordance with Section 11.9,6.02(b)(ix);
(vi) Liens incurred like-kind exchanges of interests in compliance with Section 11.2,hydrocarbon producing properties; and
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All other sales, transfers or and other dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 of assets (other than those permitted by clause (ii) or (iiiequity interests in any Subsidiary)) ; provided that all such sales, transfers and other dispositions shall be made for fair market value and for at least 7580% cash consideration. Upon any consolidation or merger by the Borrower with or into any other Person, or any conveyance or transfer by the Borrower of its properties and assets substantially as an entirety to any Person, which is permitted by this Section 6.02(a), the successor formed by such consolidation or into which the Borrower is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such successor had been named as the Borrower herein; and, in the event of such conveyance or transfer, the Borrower (which term shall for this purpose mean the Person named as the "Company" in the introduction to this Agreement or any successor corporation which shall theretofore become such in the manner described in this Section 6.02(a)) shall be discharged from all obligations and covenants under this Agreement and may be dissolved and liquidated.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Significant Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Personor, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
, except, after receipt of all necessary corporate and governmental or regulatory approvals, for (i) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into into, with or to the Company (provided that the Company shall be the continuing or surviving entity) into, with or to any other Subsidiary;
(ii) Wholly-Owned Subsidiary and any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary of the assets or Equity Interests stock of any Wholly-Owned Subsidiary;
, (ii) any such sale of assets (other than stock) which comprise all or any part of its interest in a nuclear power generating plant (whether completed or under construction), or which comprise the gas business and gas properties of the Company and (iii) any Subsidiary may liquidate, dissolve such merger or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests consolidation of the Company and is not materially disadvantageous or any Significant Subsidiary into, with or to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course Northeast and/or a Wholly-Owned Subsidiary of business, of past due receivables arising in the ordinary course of businessNortheast if, but only if, (w) in connection with the compromise case of a merger or collection thereof consistent with customary industry practice (and not as part consolidation of any bulk sale Significant Subsidiary, Tangible Net Worth immediately following, and giving effect to, such merger or financing of receivables),
consolidation shall equal or exceed Tangible Net Worth immediately prior thereto, (vx) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date before and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to any such Acquisitionmerger or consolidation, no Event of Default or Default shall exist or would result of such Acquisition; and
have occurred and be continuing, (Cy) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving or consolidation of the Company, the Company is successor or surviving corporation, if not the surviving PersonCompany, and
(ix) any sale, transfer shall have assumed or disposition succeeded to all of the Equity Interests liabilities of the Company (including the liabilities of the Company under this Agreement) and (z) the Bank shall have received the favorable written opinion of Day, Berry & Howard, or assets other counsel to the Company sxxxxxactxxx xx the Bank, to the effect of Central Health Plan clause (y) of California, Inc. and Universal Care, Inc. (d/b/a Brand New Daythis Section 6(e)(iii). All salesNotwithstanding the foregoing, transfers the Company may sell or dispositions made by assign, with or without recourse, receivables (not constituting all or any substantial part of its assets), provided, that, in the reasonable opinion of the Bank, such sale or assignment of receivables will not materially adversely affect the financial condition of the Company or any Subsidiary pursuant its ability to this Section 11.4 (other than those permitted by clause (ii) perform its obligations hereunder or (iii)) shall be made for fair value and for at least 75% cash consideration, andunder the Related Documents to which it is a party.
Appears in 1 contract
Samples: Reimbursement and Security Agreement (North Atlantic Energy Corp /Nh)
Mergers, Consolidations, Sales. NotExcept for Permitted Acquisitions, not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Co-Borrowers or into any other domestic Wholly-Owned Subsidiary, (ii) any such purchase or other acquisition by the Co-Borrowers or any domestic Wholly-Owned Subsidiary of the assets or Capital Securities of any Wholly-Owned Subsidiary, (iii) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary Loan Party into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidateCo-Borrower, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) sales and dispositions of assets (including the discount Capital Securities of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Co-Borrowers) so long as the net book value of all assets sold or sale, otherwise disposed of in each case without recourse and any Fiscal Year does not exceed 10% of the net book value of the consolidated assets of the Loan Parties as of the last day of the preceding Fiscal Year. The Lenders agrees that the security interest granted to the Lenders in any railroad rolling stock shall be automatically released as described in Section 9-320 of the UCC upon sale by the Co-Borrowers of such railroad rolling stock to a buyer in the ordinary course of business; provided, however, the such security interest shall attach to the proceeds of past due receivables arising such sale; and provided, further, that the foregoing shall not affect the Lenders’ security interest in any security interest of the Co-Borrowers in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount property of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, buyers to the extent that an Acquisition which is structured as a merger involving such security interest secures the Companypurchase price for such railroad rolling stock. Subject to the terms of this Section 11.4, if the Company is Co-Borrowers shall request in writing that the surviving Person, and
(ix) any sale, transfer or disposition of Administrative Agent evidence the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant release referred to in this Section 11.4 (with respect to specific railroad cars, the Administrative Agent shall promptly execute and deliver a partial release with respect to such railroad cars substantially in the form of Exhibit A to the Guaranty and Collateral Agreement. In the event that any Loan Party is granted a security interest in any railroad rolling stock or other than those permitted property as collateral security for the purchase price of such railroad rolling stock or other property, such Loan Party agrees that it shall execute and deliver all documents requested by clause (ii) or (iii)) shall be made the Administrative Agent in order to reflect and perfect the collateral assignment of the foregoing security interest of such Loan Party to the Administrative Agent, for fair value and for at least 75% cash consideration, andthe benefit of the Lenders.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; and (iii) the Xxxxxxxx Acquisition and any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any other Acquisition by the Company, any Subsidiary Company or any Insurance domestic Wholly-Owned Subsidiary where:
(A) the Acquisition business or division acquired is of a Person in a line of business which is similar the consulting or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Dateprofessional service business;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of such Acquisition; andexist;
(C) the aggregate cost (including assumed Debt) of such Acquisition (or series of related Acquisitions) shall not exceed an amount equal to fifty percent (50%) of Consolidated EBITDA for the period of twelve consecutive months most recently ended;
(D) immediately after giving effect to such Acquisition, the Company is compliance on a Pro Forma Basis with the Consolidated Leverage Ratio and restrictions set forth in Section 11.12;
(E) with respect to any Acquisition or related series of Acquisitions with aggregate consideration in excess of $10,000,000.00, after giving effect to such Acquisition or related series of Acquisitions on a Pro Forma Basis, the Consolidated Leverage Ratio is at least 0.25:1.0 lower than (or, one-quarter turn inside) the maximum Consolidated Leverage Ratio permitted under Section 11.12.2 for the current period;
(F) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(G) reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may reasonably require to evidence the termination of Liens on the assets or business to be acquired;
(H) not less than ten (10) Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent that an Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of EBITDA on a Pro Forma Basis relating thereto;
(I) the Administrative Agent shall have approved the Company’s computation of Consolidated EBITDA on a Pro Forma Basis, which approval shall not be unreasonably withheld or delayed;
(J) simultaneously with the closing of such Acquisition, the target company (if such Acquisition which is structured as a purchase of equity) or the Loan Party (if such Acquisition is structured as a purchase of assets or a merger involving and a Loan Party is the Companysurviving entity) executes and delivers to Administrative Agent an unlimited Guaranty of the Obligations, or at the option of Administrative Agent in Administrative Agent’s absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company, and their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations; and
(K) if the Acquisition is structured as a merger, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andentity.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any sales of receivables pursuant to the Factoring Facility, (iii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company ; and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance domestic Wholly-Owned Subsidiary where:
(A) the Acquisition business or division acquired are for use, or the Person acquired is of a Person engaged, in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Datebusinesses permitted by Section 11.10 hereof;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist exist;
(i) the entire consideration to be paid by the Loan Parties is comprised of common stock issued by the Parent or would result (ii) the aggregate consideration to be paid by the Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP, but not including any common stock issued by the Parent as part of the consideration thereof, for which the limitations set forth in this Section 11.5(C) shall not apply) in connection with such Acquisition (or any series of related Acquisitions) is less than $25,000,000;
(D) immediately after giving effect to such Acquisition; and, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.14;
(CE) in the case of the Acquisition of any Person, the Board of Directors or similar governing body of such Person has approved such Acquisition;
(F) reasonably prior to an Acquisition wherein the entire consideration is $10,000,000 or greater, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and, except in connection with liens which will continue pursuant to applicable exceptions set forth in clauses (a) through (i) of Section 11.2 lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(G) not less than ten Business Days prior to an Acquisition wherein the entire consideration is $10,000,000 or greater, the Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(H) the Administrative Agent shall have approved the Company’s computation of pro forma EBITDA wherein the entire consideration is $10,000,000 or greater;
(1) consents have been obtained in favor of and delivered to the Administrative Agent and the Lenders consenting to the collateral assignment of rights and indemnities under the related Acquisition documents, (2) opinions of counsel for the Loan Parties in favor of the Administrative Agent and the Lenders as to the enforceability of such collateral assignment of rights and indemnities under the related Acquisition documents, and (3) to the extent that an Acquisition which opinion of counsel to the selling party is structured as a merger involving delivered in connection with such Acquisition, permission for the CompanyAdministrative Agent and the Lenders to rely on such opinion, each wherein the Company entire consideration is the surviving Person, $10,000,000 or greater; and
(ixJ) any salethe provisions of Section 10.9 have been satisfied. Notwithstanding the foregoing requirements of this Section 11.5, transfer or disposition for Acquisitions where the entire consideration is less than $10,000,000 the requirements of (iv)(F), (G), and (I) above shall be satisfied within sixty (60) days following the consummation of the Equity Interests or assets Acquisition and the requirements of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (iiiv)(H) or (iii)) above shall be made for fair value and for at least 75% cash consideration, andwaived.
Appears in 1 contract
Samples: Credit Agreement (Ennis, Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) be a party to , merge, amalgamate or consolidate with any merger or consolidationPerson, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or (except for Investments otherwise permitted by Section 11.9,
(bthe sale or lease of inventory in the ordinary course of business) sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables, except for:
(a) the Parent or any Subsidiary may merge, amalgamate or consolidate (x) with the Parent or any Subsidiary or (y) with any other Person to complete a Permitted Acquisition; except provided that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company Parent shall be the continuing or surviving entityPerson in any such transaction involving the Parent, (ii) the applicable Borrower shall be the continuing or surviving Person in any other Subsidiarysuch transaction involving such Borrower and (iii) subject to the preceding clauses (i) and (ii), a Loan Party shall be the continuing or surviving Person in any such transaction involving a Loan Party (unless such Loan Party is ceasing to be a Subsidiary as a result of such transaction);
(iib) any such purchase or other acquisition (and the corresponding sale or other transfer) by the Company or any wholly-owned Subsidiary of the assets or Equity Interests stock of any Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisition;
(ivd) the discount sales or sale, in each case without recourse and assignments of receivables in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof business consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),past practice;
(ve) sales and other dispositions of Margin Stock;
(f) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(g) Investments made in accordance with permitted by Section 11.9,10.18;
(vih) Liens incurred in compliance with Section 11.2,
other sales and dispositions of assets (viiincluding the stock of Subsidiaries and including through a merger) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no (i) such modification, replacement, renewal sale or extension increases disposition of assets complies with any required prepayments payable pursuant to Section 6.4.2(a) and (ii) the amount net book value of such Investment except by the terms thereof all assets sold or otherwise disposed of in effect on the Effective Date any Fiscal Year does not exceed $100,000,000; and
(i) other sales and dispositions of assets (including the stock of Subsidiaries and including through a merger) so long as (i) both immediately before, and on a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) pro forma basis immediately after giving effect thereto, the Leverage Ratio is not greater than 4.00 to such Acquisition, 1.00Parent shall be in compliance with the financial covenant in Section 10.6.2 as then in effect (including after giving effect to any Covenant Holiday Period) based on the most recently available quarterly financial statements of the Parent and (ii) no Event of Default shall exist exists or would will result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andtherefrom.
Appears in 1 contract
Samples: Credit Agreement (Middleby Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any membership or partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for: (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided provided, that in the case of any merger or consolidation, the Company shall be is the continuing or surviving entitysurvivor) or into, with or to any other Domestic Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or Equity Interests stock of any Domestic Subsidiary;
; (iiic) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary may liquidateinto, dissolve with or wind-up if the Company determines in good faith that to any other Foreign Subsidiary; (d) any such liquidation purchase or dissolution is in the best interests other acquisition by any Foreign Subsidiary of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount assets or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part stock of any bulk sale or financing of receivables),
Foreign Subsidiary; (v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiie) any Acquisition by the Company, any Subsidiary Company or any Insurance Domestic Subsidiary where:
if (A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of exist, (2) immediately after giving effect to such Acquisition; and
, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, (C3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the extent Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that an Acquisition which is structured the conditions set forth in clauses (1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (f) sales and dispositions (“Dispositions”) of assets (including the Capital Stock of Subsidiaries) for at least fair market value (as a merger involving determined by the Board of Directors of the Company, ) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company is and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the surviving Personforegoing, and
(ix) any sale, transfer or disposition without the prior written consent of the Equity Interests or assets of Central Health Plan of CaliforniaAgent and each Lender, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made no rental vehicle franchises may be acquired by the Company or any Subsidiary pursuant to this Section 11.4 (of its Subsidiaries other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andin connection with the Hertz Acquisition.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) Not be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided or into, with or to any other Wholly-Owned Subsidiary; provided, that the Company shall be the continuing surviving entity after giving effect to any merger or surviving entity) or any other Subsidiary;
consolidation involving the Company; (iib) any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary of the assets or Equity Interests stock of any Wholly-Owned Subsidiary;
; (iiic) any Subsidiary may liquidateAcquisition, dissolve joint venture or wind-up if partnership Investment by the Company determines in good faith that such liquidation or dissolution is any Wholly-Owned Subsidiary where (1) the assets acquired (in the best interests case of an asset purchase) are for use, or the Company and Person acquired (or the Person in which an equity interest has been acquired) (in the case of any other Acquisition) is not materially disadvantageous to the Lenders;
(iv) the discount or saleengaged, in each case without recourse a business relating to digital map information or electronic navigation and in the ordinary course of businessrelated content, of past due receivables arising in the ordinary course of businessapplications and services, but only in connection with the compromise or collection thereof consistent with customary industry practice and businesses reasonably complementary thereto; (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B2) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of exist; (3) immediately after giving effect to such Acquisition, the Guarantor and its Subsidiaries are in pro forma compliance with all the financial ratios and restrictions set forth in Section 12.1.11; and
(C4) in the case of the Acquisition of any Person (or an equity interest in a Person), to the extent that an Board of Directors of such Person has approved such Acquisition; and (5) in the case of any Acquisition which is structured as a merger involving the Companyor consolidation, the Company is shall be the surviving Person, and
(ix) entity after giving effect to any sale, transfer merger or disposition of consolidation involving the Equity Interests or assets of Central Health Plan of California, Inc. Company and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or ) sales and dispositions made by of assets (including the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (iistock of Subsidiaries) or (iii)) shall be made for fair value and for at least 75fair market value (as determined by the Board of Directors of the Guarantor) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed 10% cash consideration, andof the net book value of the consolidated assets of the Guarantor and its Subsidiaries as of the last day of the preceding Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Navteq Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Loan Parties and their Subsidiaries to,
, (a) be a party to any merger or consolidation; (b) change its state of incorporation or organization, its organization type or organization identification number or change its legal name; (c) sell, transfer, dispose of, convey, or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary); (d) sell or assign with or without recourse any receivables; (e) acquire all or any substantial part of the properties of any Person; or (f) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply tofollowing:
(i) any merger, consolidation, sale, transfer, conveyance, lease merger or assignment consolidation of a Loan Party or by any Subsidiary into the Company (provided of a Loan Party with another Loan Party or another Wholly-Owned Subsidiary of a Loan Party; provided, that the Company a Loan Party shall be the continuing surviving entity in any merger or consolidation involving a Loan Party, a Borrower shall be the surviving entity) entity in any merger or consolidation involving a Borrower and Holdings shall be the surviving entity in any other Subsidiarymerger or consolidation involving Holdings;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any SubsidiaryPermitted Acquisitions;
(iii) any Subsidiary may liquidatedispositions of equipment that is substantially worn, dissolve damaged, or wind-up if the Company determines in good faith obsolete; provided that such liquidation or dissolution is in the best interests case of any disposition of equipment financed hereunder, the Company outstanding advance amount and is not materially disadvantageous all interest payable with respect thereto shall be paid to the LendersAdministrative Agent to be applied to the Term Loan as set forth herein;
(iv) the discount or salelicensing, in each case without recourse on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business;
(v) the lapse of registered patents, trademarks, copyrights and other intellectual property of past due receivables arising any Loan Party or any of its Subsidiaries to the extent not economically desirable and useful in the conduct of its business;
(vi) transfers of assets (a) to a Loan Party by (x) a Loan Party (other than Holdings, provided that the foregoing shall not limit Restricted Payments permitted by Section 9.2.3) or (y) a Subsidiary of a Loan Party (other than by a Borrower to such Subsidiary, provided that the foregoing shall not limit Restricted Payments permitted by Section 9.2.3 hereof) or (b) to a Borrower by a Borrower;
(vii) sales of inventory in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),;
(vviii) Investments made in accordance with Section 11.9,dispositions of Cash Equivalent Investments;
(viix) Liens incurred in compliance with transfers of cash permitted by Section 11.2,9.2.9(xiii); and
(viix) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal Default or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default exists and is continuing, other dispositions, not provided for in any other clause of this Section 9.2.4 in an aggregate amount not to exceed $500,000 during any consecutive twelve-month period. Notwithstanding the foregoing, in no event shall exist any disposition or would result of such Acquisition; and
(C) in the case of the Acquisition of any Persontransfer be made to Quest Vertigent One, LLC other than pursuant to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
clause (ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and9.2.4.
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly- Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; and (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance domestic Wholly-Owned Subsidiary where:
(A) the Acquisition business or division acquired are for use, or the Person acquired is of a Person engaged, in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Datebusinesses permitted by Section 11.10 hereof;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist exist;
(i) the entire consideration to be paid by the Loan Parties is comprised of common stock issued by the Parent or would result (ii) the aggregate consideration to be paid by the Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP, but not including any common stock issued by the Parent as part of the consideration thereof, for which the limitations set forth in this Section 11.5(C) shall not apply) in connection with such Acquisition (or any series of related Acquisitions) is less than $15,000,000 and the aggregate of such consideration for all such Acquisitions (or series of related Acquisitions), including such Acquisition; and, during the then ending preceding 12 month period does not exceed $20,000,000;
(CD) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.14;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and, except in connection with liens which will continue pursuant to applicable exceptions set forth in clauses (a) through (i) of Section 11.2 lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(G) not less than ten Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent that an Acquisition Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which is structured they are available and as a merger involving otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company, 's calculation of pro forma EBITDA relating thereto;
(H) the Company is Administrative Agent and Required Lenders shall have approved the surviving Person, Company's computation of pro forma EBITDA;
(I) consents have been obtained in favor of the Administrative Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Loan Parties and (if delivered to the Loan Party) the selling party in favor of the Administrative Agent and the Lenders have been delivered; and
(ixJ) any sale, transfer or disposition the provisions of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and10.9 have been satisfied.
Appears in 1 contract
Samples: Credit Agreement (Ennis, Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) be a party to , merge, amalgamate or consolidate with any merger or consolidationPerson, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or (except for Investments otherwise permitted by Section 11.9,
(bthe sale or lease of inventory in the ordinary course of business) sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables, except for:
(a) the Parent or any Subsidiary may merge, amalgamate or consolidate (x) with the Parent or any Subsidiary or (y) with any other Person to complete a Permitted Acquisition; except provided that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company Parent shall be the continuing or surviving entityPerson in any such transaction involving the Parent, (ii) the applicable Borrower shall be the continuing or surviving Person in any other Subsidiarysuch transaction involving such Borrower and (iii) subject to the preceding clauses (i) and (ii), a Loan Party shall be the continuing or surviving Person in any such transaction involving a Loan Party (unless such Loan Party is ceasing to be a Subsidiary as a result of such transaction);
(iib) any such purchase or other acquisition (and the corresponding sale or other transfer) by the Company or any wholly-owned Subsidiary of the assets or Equity Interests stock of any Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisition;
(ivd) the discount sales or sale, in each case without recourse and assignments of receivables in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof business consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),past practice;
(ve) sales and other dispositions of Margin Stock;
(f) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(g) Investments made in accordance with permitted by Section 11.9,10.18;
(vih) Liens incurred in compliance with Section 11.2,
other sales and dispositions of assets (viiincluding the stock of Subsidiaries and including through a merger) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no (i) such modification, replacement, renewal sale or extension increases disposition of assets complies with any required prepayments payable pursuant to Section 6.4.2(a) and (ii) the amount net book value of such Investment except by the terms thereof all assets sold or otherwise disposed of in effect on the Effective Date any Fiscal Year does not exceed $100,000,000; and
(i) other sales and dispositions of assets (including the stock of Subsidiaries and including through a merger) so long as (i) both immediately before, and on a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) pro forma basis immediately after giving effect thereto, the Parent shall be in compliance with the financial covenant in Section 10.6.2 as then in effect (including after giving effect to such Acquisition, any Covenant Holiday Period) based on the most recently available quarterly financial statements of the Parent and (ii) no Event of Default shall exist exists or would will result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andtherefrom.
Appears in 1 contract
Samples: Credit Agreement (MIDDLEBY Corp)
Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to,
, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,
in all cases other than: (bi) sellany such merger, consolidation, sale, transfer, convey acquisition, conveyance, lease, or lease all assignment of or substantially all of its assets (including the sale of all by any Borrower or substantially all of the Equity Interests of Subsidiary with and into any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business Borrower or (ii) any Subsidiary so long as (t) no Unmatured Event other provision of this Agreement would be violated thereby, (u) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing or
(c) sell either before or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisitionthat transaction, no Event of Default shall exist or would result of such Acquisition; and
and (Cz) the Lenders’ rights in any Collateral, including the case of the Acquisition existence, perfection and priority of any PersonLien thereon, to the extent are not adversely affected by that an Acquisition which is structured as a merger involving the Companyor consolidation, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or Permitted Acquisitions, (iii)) shall be made for fair value Permitted Asset Dispositions, and for at least 75% cash consideration, and(iv) an IPO by Ultimate Holdings otherwise permitted hereunder.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) create any Subsidiary; (b) without the Required Lenders’ prior written consent, not to be a party to unreasonably withheld, consummate any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
including, without limitation, Titan Europe, (bc) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except for (ix) for sales of inventory and obsolete equipment Inventory in the ordinary course of business business, (y) the sale, transfer or conveyance of the Capital Securities of Titan Wheel Corporation of Virginia or (iiz) so long as no Unmatured Event of Default otherwise allowed in this Agreement, or Event of Default has occurred and is continuing or
(cd) sell or assign with or without recourse any receivables; except that . Notwithstanding the restrictions set forth in clauses (a)-(c) above foregoing, the following shall not apply to
be permitted: (i) any merger, consolidation, with Required Lenders’ prior written consent (such consent not to be unreasonably withheld) the sale, transfer, conveyanceconveyance or other disposition by a Loan Party of machinery and equipment during the term of this Agreement having an Orderly Liquidation Value not exceeding $75,000,000 in the aggregate, lease or assignment provided however, no disposition may occur if and to the extent that any such contemplated disposition is for a cash amount which is less than the Orderly Liquidation Value of or by any Subsidiary into the Company such asset; (ii) transfers between Obligors provided that the Administrative Agent maintains a first priority perfected security interest in the asset transferred; (iii) sales of the Capital Securities of any Foreign Subsidiary; (iv) the sale, transfer, conveyance or other disposition by a Loan Party of equipment or fixtures that are obsolete or no longer used or useful in such Loan Party’s business and having a value not exceeding $20,000,000 in the aggregate in any Fiscal Year, provided such equipment or fixtures is replaced by equipment or fixtures of comparable value or worth; (v) Permitted Acquisitions and (vi) the Goodyear Foreign Acquisition. With respect to any disposition of assets or other properties permitted pursuant to clause (i) above, the Administrative Agent agrees, upon reasonable prior written notice, to release the Lien, if any, on such assets or other properties in order to permit the applicable Loan Party to effect such disposition and shall execute and deliver to Company shall at Company’s expense, appropriate UCC-3 termination statements and other releases as reasonably requested by Company.”
17. Section 11.10 of the Credit Agreement is hereby amended by restating the second sentence thereof in its entirety to be the continuing or surviving entity) or and read as follows: “Not, and not permit any other Subsidiary;
Loan Party to, issue any Capital Securities other than (a) any issuance of shares of the Company’s Common Stock pursuant to (i) a stock split approved by the Company’s board of directors or (ii) any such purchase employee or other acquisition director option program, benefit plan or compensation program; (b) any issuance by a Subsidiary to the Company or any another Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
11.4; or (vi) Liens incurred in compliance with Section 11.2,
(viic) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension issuance of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result shares of the accrual or accretion of interest or original issue discount Company’s Common Stock in connection with a merger, a Permitted Acquisition or the issuance of pay-in-kind securities) or as otherwise permitted by this Goodyear Foreign Acquisition.”
18. Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business 11.11 of the Company Credit Agreement is hereby amended in its entirety to be and its Subsidiaries read as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andfollows:
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) into, with or to any other Wholly-Owned Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary of the assets or Equity Interests stock of any Wholly-Owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiic) any Acquisition by the Company, any Subsidiary Company or any Insurance Wholly-Owned Subsidiary where:
where (A1) the Acquisition assets acquired (in the case of an asset purchase) are for use, or the Person acquired (in the case of any other Acquisition) is of a Person engaged, solely in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
security systems and/or fire alarm businesses; (B2) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist exist; (3) the consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or would result issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (or any series of related Acquisitions) and any other Acquisitions consummated during the same Fiscal Year is less than $600,000, in aggregate; (4) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and
(C5) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition; (6) the EBITDA in respect of the business (in the case of an asset purchase) or Person (in the case of any other Acquisition) acquired is not less than zero; and (7) the Company provides ten days prior written notice of such Acquisition to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. Agent; and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or ) sales and dispositions made by of assets (including the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (iistock of Subsidiaries) or (iii)) shall be made for fair value and for at least 75fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed 10% cash consideration, andof the net book value of the consolidated assets of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Compudyne Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve or wind-up if sales and dispositions of assets (including the Company determines in good faith that such liquidation or dissolution is in Capital Securities of Subsidiaries) for at least fair market value (as determined by the best interests Board of Directors of the Company Company) and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance Wholly-Owned Subsidiary where:
(A) the Acquisition property, business or division acquired are for use, or the Person acquired is of a Person engaged, in a line of business which is similar or complementary to the lines of business of businesses engaged in by the Company and its Subsidiaries as of Loan Parties on the Effective Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of such Acquisition; andexist;
(C) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.13;
(D) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(E) not less than ten Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent that an Acquisition which is structured as a merger involving Person and/or business or division to be acquired, and the Company, the Company is the surviving Person, 's calculation of pro forma EBITDA relating thereto; and
(ixF) any salethe Administrative Agent and Required Lenders shall have approved the Company's computation of pro forma EBITDA, transfer or disposition of provided that if the Equity Interests or assets of Central Health Plan of California, Inc. Administrative Agent and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by Required Lenders shall not have notified the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) that they disapprove such computation of pro forma EBITDA within 5 Business Days after they have received such computation, then they shall be made for fair value and for at least 75% cash consideration, anddeemed to have approved such computation.
Appears in 1 contract
Mergers, Consolidations, Sales. (A) Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or be a party to any Asset Sale, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(i) any such merger, consolidation, sale, transfertransfer (upon voluntary liquidation or otherwise), conveyance, lease or assignment of or by any (a) Credit Party into, with or to any Credit Party, (b) Subsidiary into the Company (provided that the Company into, with or to any Credit Party if such Credit Party shall be the continuing or surviving entityentity or (c) any Subsidiary that is not a Credit Party with or into any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary sales of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and inventory in the ordinary course of business, ;
(iii) the pledge of past due receivables arising Collateral pursuant to the Collateral Documents and the incurrence of any Lien permitted by SECTION 10.8;
(iv) Asset Sales of worn out or obsolete property by any Subsidiary in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),;
(v) Investments made Asset Sales by a Credit Party in accordance with Section 11.9,which such Credit Party substantially contemporaneously leases the transferred asset back from the transferee, PROVIDED that, the Attributable Debt in respect of any such Asset Sales is permitted under SECTION 10.7;
(vi) Liens incurred in compliance other Asset Sales for which the sole consideration received is cash of assets with Section 11.2,an aggregate fair market value not exceeding $3,000,000 from and after the Initial Closing Date;
(vii) transfers resulting from any Acquisition (a) existing on, casualty or contractually committed condemnation of property with an aggregate fair market value of up to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,$3,000,000; and
(viii) the making of Investments permitted by SECTION 10.20 and the liquidation of Investments in Cash Equivalents in the ordinary course of business. To the extent that the Required Lenders waive the provisions of this SECTION 10.11 with respect to the sale or other disposition of any Acquisition Collateral, or any Collateral is sold or otherwise disposed of as permitted by this SECTION 10.11, such Collateral shall be sold or otherwise disposed of free and clear of the Lien created by the CompanyCollateral Documents and the obligations of this Agreement and the Administrative Agent shall, any Subsidiary or any Insurance Subsidiary where:
(A) at the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business expense of the Company Borrowers, take such actions as are appropriate and its Subsidiaries as of reasonably requested by the Effective Date;Borrowers in connection therewith.
(B) immediately after giving effect With respect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any new wholly owned Subsidiary pursuant to this Section 11.4 (other than those permitted a Non-United States Subsidiary) created or acquired after the Initial Closing Date by clause any Credit Party, the applicable Credit Party shall (i) cause such newly created or acquired Subsidiary to execute and deliver to the Administrative Agent a joinder to this Agreement, substantially in the form of EXHIBIT C, the Pledge Agreement, the Security Agreement, and the Contribution and Subordination Agreement and (ii) deliver promptly to the Administrative Agent an amendment to the schedules to the Pledge Agreement and the Security Agreement in form and substance reasonably satisfactory to the Administrative Agent listing the shares of capital stock of such Subsidiary held by such Credit Party and the certificates, if any, representing such shares, together with undated stock powers, in blank, executed by a Responsible Officer of such Credit Party. With respect to any new Non-United States wholly owned Subsidiary created or (iii)) acquired after the Initial Closing Date and held directly by any Credit Party formed in the United States, the applicable Credit Party shall be made for fair value deliver promptly to the Administrative Agent an amendment to the schedules to the Pledge Agreement and for at least 75% cash considerationthe Security Agreement in form and substance reasonably satisfactory to the Administrative Agent listing the shares of capital stock of such Subsidiary held by such Credit Party and the certificates, andif any, representing such shares, together with undated stock powers, in blank, executed by a Responsible Officer of such Credit Party.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) No Obligor shall be a party to any merger, consolidation or exchange of stock unless WMI shall be the surviving entity with respect to any such transaction to which WMI is a party and Waste Management Holdings, Inc. shall be the survivor of any merger with any other Obligor or consolidationa Subsidiary shall be the surviving entity (and continue to be a Subsidiary) with respect to any such transactions to which one or more Obligors is a party (and the conditions set forth below are satisfied), or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership partnership, membership or joint venture or other interest in, any other PersonPerson except as otherwise provided in Section 6.4(3) or this Section 6.4(4). Notwithstanding the foregoing, except for Investments the Obligor may purchase or otherwise acquire all or substantially all of the assets or stock of any class of, or joint venture or other interest in, any Person if the following conditions have been met: (i) the proposed transaction will not otherwise create an Event of Default or a Pending Event of Default hereunder; and (ii) the business to be acquired predominantly involves (A) the collection, transfer, hauling, disposal or recycling of solid waste or thermal soil remediation, or (B) other lines of businesses currently engaged in, or related, associated, complementary or supplementary thereto, whether from an operational, business financial, technical or administrative standpoint; provided that an Obligor may purchase or otherwise acquire all or substantially all of the assets or stock of any class of, or partnership, membership or joint venture or other interest in, any Persons in unrelated businesses, not to exceed a total aggregate amount of $400,000,000 during the term of this Agreement. Notwithstanding anything herein to the contrary, the ability of the Subsidiaries of WMI to incur any Debt in connection with any transaction permitted by pursuant to this Section 11.9,6.4(4) shall be governed Section 6.4(1).
(b) No Obligor shall sell, transfer, convey or lease all any assets or substantially all group of its assets (assets, including the sale of all or substantially all of the Equity Interests transfer of any Subsidiary) property owned by such Obligor in order then or thereafter to lease such property or lease other property which such Obligor intends to use for substantially the same purpose as the property being sold or transferred, or sell or assign, with or without recourse, any receivables, except (i) for sales transfers of inventory and obsolete equipment in the ordinary course real or personal property among Subsidiaries of business or WMI, (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell continuing, or assign with would result therefrom, sales of assets or without recourse any receivablespursuant to sale-leaseback transaction; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that any net cash proceeds from any such sale or sale-leaseback shall within 180 days, either be used to pay down outstanding Obligations under either this Agreement or the Company shall U.S. Credit Agreement or be reinvested by such Person in assets of the continuing or surviving entitybusiness of the Obligors, used for working capital, invested in Investments in accordance with the provisions of Section 6.4(3) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
used for general corporate purposes, (iii) any Subsidiary may liquidatesales of accounts receivable (and contract rights, dissolve general intangibles or wind-up if the Company determines in good faith that such liquidation chattel paper related thereto) more than sixty (60) days past due sold or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and assigned in the ordinary course of business, of collecting past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing onaccounts, or contractually committed to or contemplated as of, the Effective Date and (biv) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, anda Permitted Receivables Transaction.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
(a) , be a party to any merger or consolidation, or make any Acquisition, purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, in any other PersonPerson (other than a Person that is, except for Investments otherwise permitted by Section 11.9,
(b) or becomes as the result of purchase or acquisition, a Subsidiary), or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment (i) of or by any Subsidiary Guarantor into, with or to the Company or another Subsidiary Guarantor or (ii) of or by any wholly-owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Loan Party or into, with or to any other wholly-owned Subsidiary;
(iib) any such purchase or other acquisition by the Company or any Subsidiary Loan Party of the assets or Equity Interests stock of any wholly-owned Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisitions;
(ivd) the discount or saledispositions of accounts receivable, in each case without recourse lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(e) dispositions of inventory in the ordinary course of business;
(f) dispositions of accounts receivable with extended terms and dispositions of defaulted accounts receivable without credit recourse in transactions that do not constitute securitizations, of past due receivables arising in each case in the ordinary course of business, but only business consistent with past practice of the Company and its Significant Subsidiaries;
(g) sales and dispositions of assets (including stock of Subsidiaries) purchased in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),a direct result of) a Permitted Acquisition;
(vh) Investments made purchases and other acquisitions of such partnership and joint venture interests so long as the aggregate outstanding amount of investments in accordance with Section 11.9,
such partnerships and joint ventures (vi) Liens incurred in compliance with Section 11.2,
(vii) excluding any Acquisition (a) such investment existing on, or contractually committed to or contemplated as of, on the Effective Date and listed on Schedule 10.9) does not at any time exceed 20% of the consolidated tangible assets of the Company and its Subsidiaries; and
(bi) any modification, replacement, renewal or extension other sales and dispositions of any Investment described in clause assets (aincluding the stock of Subsidiaries) above made for fair market value so long as (i) no such modification, replacement, renewal Event of Default or extension increases the amount Unmatured Event of such Investment except by the terms thereof in effect on the Effective Date Default exists or would result therefrom; and (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(Aii) the Acquisition is Net Cash Proceeds of a Person in a line of business all such sales and dispositions (excluding Net Cash Proceeds that are applied within 180 days after receipt thereof (or with respect to which is similar or complementary the Company has entered into binding commitments within 180 days after receipt thereof to apply such Net Cash Proceeds (but only to the lines of extent such Net Cash Proceeds are applied within 270 days after receipt thereof pursuant to such commitments)) to purchase revenue-producing assets used in the business of the Company and its Subsidiaries as or to consummate Permitted Acquisitions) in any Fiscal Year do not exceed the greater of (x) $50,000,000 and (y) 15% of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case consolidated tangible assets of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andits Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Regal Beloit Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
, (b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) and, so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
continuing, or (c) sell or assign with or without recourse any receivables; , except for that the restrictions set forth in clauses (a)-(c) above shall not apply to
to (i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; and (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance domestic Wholly-Owned Subsidiary where:
(A) the Acquisition is made in accordance with the Company’s strategic business plan, as it may be amended from time to time by the Company, and is an Acquisition of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries Loan Parties as of the Effective Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would is reasonably likely to occur as a result of such Acquisition; and;
(C) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12;
(D) in the case of the Acquisition of any Person, to the extent that board of directors or similar governing body of such Person has approved such Acquisition, and in the case of an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, ; and
(ixE) any salenot less than ten Business Days prior to such Acquisition, transfer Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or disposition division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the Equity Interests or assets proposed Acquisition, and the Company’s calculation of Central Health Plan of California, Inc. pro forma EBITDA relating thereto. The conditions contained in clauses (C) and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by E) above will not apply to an Acquisition if the Company or has provided prior written notice of such Acquisition to Administrative Agent summarizing the essential terms thereof and the total consideration paid (including the fair market value of any Subsidiary pursuant property conveyed and including deferred consideration) by a Loan Party if such Acquisition (1) does not exceed $75,000,000 and (2) will not cause the total consideration paid (including the fair market value of any property conveyed and including deferred consideration) in all Acquisitions in such Fiscal Year to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andexceed $225,000,000 in the aggregate.
Appears in 1 contract
Samples: Credit Agreement (Centene Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
Not (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, dispose of, convey or lease all or substantially all any of its assets (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing Borrower or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company Borrower or any domestic Wholly-Owned Subsidiary of 87 the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; and (iii) Permitted Acquisitions. Notwithstanding the foregoing: (i) any Subsidiary Loan Party may liquidatesell Ownership Based Financing Property under Permitted Ownership Based Financings, dissolve so long as the cash proceeds of such sale shall be deposited by the applicable Ownership Based Financing Counterparty directly or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous indirectly into an Assigned Bank Account; (ii) [Reserved.]; (iii) Collateral Finance Corporation may from time to time, to the Lenders;
extent not included in Collateral, sell CFC Loans – Bullion and CFC Acquired Loans, together with related Bullion Collateral, in each case, on fair and reasonable terms; and (iv) the discount any Loan Party may sell or sale, in each case without recourse and in the ordinary course dispose of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and other assets not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with otherwise permitted under this Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition 11.5; provided that (a) existing on, or contractually committed to or contemplated as of, at the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount time of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual sale or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisitiondisposition, no Event of Default shall exist or would result therefrom and (b) the aggregate fair market value of such Acquisition; and
all property sold or disposed of in reliance on this clause (Civ) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) Fiscal Year shall be made for fair value and for at least 75% cash consideration, andnot exceed $5,000,000.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
(a) , be a party to any merger or consolidation, or make any Acquisition, purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, in any other PersonPerson (other than a Person that is, except for Investments otherwise permitted by Section 11.9,
(b) or becomes as the result of purchase or acquisition, a Subsidiary), or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment (i) of or by any Subsidiary Guarantor into, with or to the Company or another Subsidiary Guarantor or (ii) of or by any wholly-owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Loan Party or into, with or to any other wholly-owned Subsidiary;
(iib) any such purchase or other acquisition by the Company or any Subsidiary Loan Party of the assets or Equity Interests stock of any wholly-owned Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisitions;
(ivd) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(e) dispositions of inventory and worn-out, obsolete or surplus equipment in the discount or saleordinary course of business and cash, in each case without recourse cash equivalents and marketable securities in the ordinary course of business;
(f) dispositions of accounts receivable with extended terms and dispositions of defaulted accounts receivable without credit recourse in transactions that do not constitute securitizations, of past due receivables arising in each case in the ordinary course of business, but only business consistent with past practice of the Company and its Significant Subsidiaries;
(g) sales and dispositions of assets (including stock of Subsidiaries) purchased in connection with the compromise or collection thereof consistent with customary industry practice (and not as part a direct result of) a Permitted Acquisition;
(h) purchases and other acquisitions of such partnership and joint venture interests so long as the aggregate amount of investments (net of any bulk sale cash returns thereon) in such partnerships and joint ventures (excluding any such investment existing or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, for on the Effective Date and listed on Schedule 10.9) does not, on the date any such investment is made, exceed 20% of the consolidated tangible assets of the Company and its Subsidiaries; and
(bi) any modification, replacement, renewal or extension other sales and dispositions of any Investment described in clause assets (aincluding the stock of Subsidiaries) above made for fair market value so long as (i) no such modification, replacement, renewal Event of Default or extension increases the amount Unmatured Event of such Investment except by the terms thereof in Default exists or would exist immediately after giving effect on the Effective Date thereto; and (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(Aii) the Acquisition is Net Cash Proceeds of a Person in a line of business all such sales and dispositions (excluding Net Cash Proceeds that are applied within 180 days after receipt thereof (or with respect to which is similar or complementary the Company has entered into binding commitments within 180 days after receipt thereof to apply such Net Cash Proceeds (but only to the lines of extent such Net Cash Proceeds are applied within 270 days after receipt thereof pursuant to such commitments)) to purchase revenue-producing assets used in the business of the Company and its Subsidiaries as or to consummate Permitted Acquisitions) in any Fiscal Year do not exceed the greater of (x) $50,000,000 and (y) 15% of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case consolidated tangible assets of the Acquisition Company and its Subsidiaries. For the avoidance of any Person, to the extent that an Acquisition which is structured as a merger involving the Companydoubt, the Company is granting of a Lien to secure the surviving Personrepayment of Debt or other obligations shall not, and
(ix) any salein and of itself, constitute a conveyance or transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and10.9.
Appears in 1 contract
Samples: Credit Agreement (Regal Beloit Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, of any other Person; provided, except for Investments otherwise permitted by Section 11.9,
that so long as no Event of Default exists or would be caused thereby, the Borrower may engage in the foregoing transactions so long as the aggregate consideration paid or to be paid in connection therewith (including cash and earn-outs) does not exceed $7,500,000 during the term of this Agreement, (b) sell, transfer, convey or lease (a “Disposition”) all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business Interests, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign (other than for security purposes) with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease Disposition or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing Borrower or surviving entity) or into any other Domestic Wholly-Owned Subsidiary;
, (ii) any such purchase or other acquisition by the Company Borrower or any Domestic Wholly-Owned Subsidiary of the assets or Equity Interests of any Wholly-Owned Subsidiary;
, (iii) Dispositions of assets for at least fair market value (as determined by the Board of Directors of the Borrower) so long as the net book value of all assets Disposed of in any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is Fiscal Year (other than in the best interests ordinary course of business) does not exceed 20% of the Company and is not materially disadvantageous to net book value of the Lenders;
consolidated total assets of the Loan Parties as of the last day of the preceding Fiscal Year, (iv) any Loan Party may Dispose of any, all or substantially all of its assets (upon voluntary liquidation or otherwise) to the discount Borrower or saleto another Subsidiary, in each case without recourse and (v) Dispositions of used, damaged, obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business, (vi) Dispositions (x) of past due receivables arising assets (including real property) or inventory in the ordinary course of business, but only or (y) with respect to property of any Loan Party that is no longer necessary for such Loan Party’s business as conducted prior thereto or thereafter contemplated, (vii) Dispositions of equipment or real property to the extent that (x) such property is exchanged for credit against the purchase price of similar replacement property or (y) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property, (viii) Dispositions of Investments, (ix) [Reserved], (x) sale-leaseback transactions in connection with financing of equipment or other property used in the ordinary course of business of the Borrower that is otherwise permitted pursuant to Section 11.1, (xi) Dispositions of accounts receivable in connection with the collection or compromise thereof, (xii) leases, subleases, licenses or collection thereof consistent with customary industry practice (and not as part sublicenses of any bulk sale or financing of receivables),
(v) Investments made property in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line ordinary course of business and which is similar or complementary to do not materially interfere with the lines of business of the Company Loan Parties, and its Subsidiaries as (xiii) transfers of the Effective Date;
(B) immediately after giving effect property subject to such Acquisitioncasualty events, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. governmental takings and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andinvoluntary transfers.
Appears in 1 contract
Samples: Credit Agreement (Weyco Group Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any membership or partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for: (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided provided, that in the case of any merger or consolidation, the Company shall be is the continuing or surviving entitysurvivor) or into, with or to any other Domestic Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or Equity Interests stock of any Domestic Subsidiary;
; (iiic) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary may liquidateinto, dissolve with or wind-up if the Company determines in good faith that to any other Foreign Subsidiary; (d) any such liquidation purchase or dissolution is in the best interests other acquisition by any Foreign Subsidiary of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount assets or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part stock of any bulk sale or financing of receivables),
Foreign Subsidiary; (v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiie) any Acquisition by the Company, any Subsidiary Company or any Insurance Domestic Subsidiary where:
if (A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of exist, (2) immediately after giving effect to such Acquisition; and
, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, (C3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the extent that an Agent in its sole discretion, to put the Person acquired in such Acquisition which is structured as back to the seller thereof for a merger involving price in cash at least equal to the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition total amount of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made cash consideration paid by the Company or any such Subsidiary pursuant in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to this Section 11.4 such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (other than those permitted by clause 4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (ii1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (iii)in the case of a certificate delivered after such Acquisition) shall be made for fair value met; (f) sales and dispositions (“Dispositions”) of assets (including the Capital Stock of Subsidiaries) for at least 75% fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash consideration, andproceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
, (b) sell, transfer, convey or lease all or substantially all of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) and, so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
continuing, or (c) sell or assign with or without recourse any receivables; , except for that the restrictions set forth in clauses (a)-(c) above shall not apply to
to (i) the HN Acquisition; (ii) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by (A) any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity), (B) any Subsidiary into any domestic Wholly-Owned Subsidiary (provided that if such Subsidiary has provided a guarantee of the Obligations, the continuing or surviving entity shall also provide a guarantee of the Obligations) or (C) any foreign Subsidiary into any other foreign Subsidiary;
; (iiiii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary and by any foreign Subsidiary of the assets or Capital Securities of any other foreign Subsidiary;
; (iiiiv) any Subsidiary Loan Party (other than the Company) may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
Lenders and no Unmatured Event of Default or Event of Default has occurred and is continuing or would result therefrom; (ivv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
, (vvi) Investments made in accordance with Section 11.9,
, (vivii) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date 11.2 and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Company or any Insurance Wholly-Owned Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries Loan Parties as of the Effective Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would is reasonably likely to occur as a result of such Acquisition;
(C) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.12 as of the last day of the most recently ended Computation Period; and
(CD) in the case of the Acquisition of any Person, to the extent that board of directors or similar governing body of such Person has approved such Acquisition, and in the case of an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by The condition contained in clause (iiC) above will not apply to an Acquisition if the total consideration paid (including the fair market value of any property conveyed and including deferred consideration) for such Acquisition individually or (iii)) shall be made for fair value and for at least 75% cash considerationall Acquisitions in the aggregate, anddoes not exceed $400,000,000.
Appears in 1 contract
Samples: Credit Agreement (Centene Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) Neither Company nor any Subsidiary shall be a party to any merger, amalgamation, consolidation, Division or exchange of stock unless the Company shall be the surviving entity with respect to any such transaction to which the Company is a party and the Guarantor shall be the survivor of any merger or consolidationamalgamation with any other Subsidiary or a Subsidiary shall be the surviving entity (and continue to be a Subsidiary) with respect to any such transactions to which one or more Subsidiaries is a party (and the conditions set forth below are satisfied), or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership partnership, membership or joint venture or other interest in, any other PersonPerson except as otherwise provided in this Section 8.4. Notwithstanding the foregoing, except for Investments the Company and its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock of any class of, or joint venture or other interest in, any Person if the following conditions have been met: (i) the proposed transaction will not otherwise create a Default or an Event of Default hereunder; and (ii) the business to be acquired predominantly involves (A) the collection, transfer, hauling, disposal or recycling of solid waste or thermal soil remediation, or (B) other lines of businesses currently engaged in, or related, associated, complementary or supplementary thereto, whether from an operational, business, financial, technical or administrative standpoint; provided that the Company or its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock of any class of, or any partnership, membership or joint venture or other interest in, any Persons in unrelated businesses, not to exceed a total aggregate amount after the Effective Date of $400,000,000. Notwithstanding anything herein to the contrary, the ability of the Subsidiaries of the Company to incur any Indebtedness in connection with any transaction permitted pursuant to this Section 8.4 shall be governed by Section 11.9,8.1.
(b) Neither Company nor any Subsidiary shall sell, transfer, convey or lease all any assets or substantially all group of its assets (assets, including the sale of all or substantially all of the Equity Interests transfer of any Subsidiary) property owned by the Company or any Subsidiary in order then or thereafter to lease such property or lease other property which the Company or any Subsidiary intends to use for substantially the same purpose as the property being sold or transferred, or sell or assign, with or without recourse, any receivables, except (i) for sales transfers of inventory and obsolete equipment in real or personal property among Subsidiaries of the ordinary course of business or Company, (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell continuing, or assign with would result therefrom, sales of assets or without recourse any receivablespursuant to a sale-leaseback transaction; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) net cash proceeds from any such purchase sale or other acquisition sale-leaseback shall, within 180 days, either be used to pay down outstanding Loans under this Agreement or be reinvested by the Company or any Subsidiary such Person in assets of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as Subsidiaries, used for working capital, or used for other general corporate purposes, (iii) sales of the Effective Date;
accounts receivable (Band contract rights, general intangibles or chattel paper related thereto) immediately after giving effect to such Acquisition, no Event of Default shall exist more than 60 days past due sold or would result of such Acquisition; and
(C) assigned in the case ordinary course of the Acquisition of any Personcollecting past due accounts, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
or (ixiv) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, anda Permitted Receivables Transaction.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Related Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
business, (c) sell or assign with or without recourse any receivables; receivables or (d) consummate any other Acquisition (collectively, “Restricted Transactions”), except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) so long as no Event of Default or Unmatured Event of Default exists or would result therefrom, any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any foreign Wholly-Owned Subsidiary into any other foreign Wholly-Owned Subsidiary (but only to the extent that, if either such Subsidiary is a Pledged Subsidiary, the survivor of such merger is a Pledged Subsidiary as to which the Borrowers are in compliance with the provisions of Section 10.10 of this Agreement), or by a Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) so long as no Event of Default or Unmatured Event of Default exists or would result therefrom and the Borrowers are in pro forma compliance (as determined on a Pro Forma Basis and as evidenced by a certificate of a Senior Officer of the Company delivered to the Agent and Lenders in advance thereof) with all of the covenants set forth in Section 11.13, both before and after giving effect thereto, sales and dispositions of (A) the Easylink Note and the EasyLink Shares (and any assets received in consideration of any such purchase sale or disposition), (B) Assets acquired in Acquisitions permitted under part (iii) of this Section provided such disposition occurs within 270 days of such Acquisition, and (C) other acquisition assets (including the Capital Securities of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the greater of the fair market value and net book value of all assets sold or otherwise disposed of under this clause (C) in any Fiscal Year does not exceed $5,000,000 in the aggregate; and (iii) any Acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or winddomestic Wholly-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Owned Subsidiary where:
(A) the Acquisition business or division acquired are for use, or the Person acquired is of a Person engaged, in a line of business which is the same or similar or complementary to the lines of business of businesses engaged in by the Company and its Subsidiaries as of on the Effective Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist exist;
(C) the aggregate consideration paid or would result provided or to be paid or provided by the Company or such Wholly-Owned Subsidiary in connection with such Acquisition is solely cash, assumption of Debt permitted under Section 11.1 and capital stock of the Company and the aggregate amount of such cash and assumed Debt (less unrestricted acquired cash on hand acquired in such Acquisition) is not more than $25,000,000;
(D) each of the parties to any Acquisition in which the Company issues Capital Securities has a positive EBITDA for the twelve-month period most recently completed prior to such Acquisition;
(E) the aggregate consideration paid or provided or to be paid or provided in connection with such Acquisition and all other Acquisitions during the term of this Agreement is not more than (i) $50,000,000 in cash plus assumed Debt less unrestricted acquired cash on hand acquired in such Acquisition, and (ii) $100,000,000 in capital stock of the Company;
(F) immediately after giving effect to such Acquisition, the Company is in pro forma compliance (as determined on a Pro Forma Basis) with all the financial ratios and restrictions set forth in Section 11.13 and (unless such Acquisition is a Small Acquisition) the Company shall demonstrate such compliance in a certificate of a Senior Officer of the Company delivered to the Agent and the Lenders in advance of such Acquisition; and;
(CG) in the case of the Acquisition of any Person, the Acquisition is on a “friendly basis” and the Board of Directors of such Person has approved such Acquisition;
(H) reasonably prior to such Acquisition (unless such Acquisition is a Small Acquisition), the Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(I) not less than ten Business Days prior to such Acquisition (unless such Acquisition is a Small Acquisition), the Agent shall have received an acquisition summary with respect to the extent that an Acquisition Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which is structured they are available and as a merger involving otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(J) consents have been obtained in favor of the Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents;
(K) after giving effect to such Acquisition, the Revolving Loan Availability plus the total cash and cash equivalents held by the Company and located in the United States is the surviving Person, equal to or more than $10,000,000; and
(ixL) the provisions of Section 10.10 have been satisfied and the Agent and its counsel shall receive such documents, instruments, agreements and opinions as are reasonably satisfactory in form and substance to the Agent and its counsel. The Agent shall execute such UCC partial releases, quitclaims deeds and other release documents with respect to any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant subject to an Asset Disposition permitted under this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and11.4.
Appears in 1 contract
Samples: Credit Agreement (Ptek Holdings Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) be a party to , merge, amalgamate or consolidate with any merger or consolidationPerson, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or (except for Investments otherwise permitted by Section 11.9,
(bthe sale or lease of inventory in the ordinary course of business) sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables, except for:
(a) the Parent or any Subsidiary may merge, amalgamate or consolidate (x) with the Parent or any Subsidiary or (y) with any other Person to complete a Permitted Acquisition; except provided that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company Parent shall be the continuing or surviving entityPerson in any such transaction involving the Parent, (ii) the applicable Borrower shall be the continuing or surviving Person in any other Subsidiarysuch transaction involving such Borrower and (iii) subject to the preceding clauses (i) and (ii), a Loan Party shall be the continuing or surviving Person in any such transaction involving a Loan Party (unless such Loan Party is ceasing to be a Subsidiary as a result of such transaction);
(iib) any such purchase or other acquisition (and the corresponding sale or other transfer) by the Company or any wholly-owned Subsidiary of the assets or Equity Interests stock of any Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisition;
(ivd) the discount sales or sale, in each case without recourse and assignments of receivables in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof business consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),past practice;
(ve) sales and other dispositions of Margin Stock;
(f) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(g) Investments made in accordance with permitted by Section 11.9,10.18;
(vih) Liens incurred in compliance with Section 11.2,
other sales and dispositions of assets (viiincluding the stock of Subsidiaries and including through a merger) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no (i) such modification, replacement, renewal sale or extension increases disposition of assets complies with any required prepayments payable pursuant to Section 6.4.2(a) and (ii) the amount net book value of such Investment except by the terms thereof all assets sold or otherwise disposed of in effect on the Effective Date any Fiscal Year does not exceed $100,000,000; and
(i) other sales and dispositions of assets (including the stock of Subsidiaries and including through a merger) so long as (i) both immediately before, and on a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) pro forma basis immediately after giving effect thereto, the Leverage Ratio is not greater than 4.00 to such Acquisition, 1.00 based on the most recently available quarterly financial statements of the Parent and (ii) no Event of Default shall exist exists or would will result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andtherefrom.
Appears in 1 contract
Samples: Credit Agreement (Middleby Corp)
Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to,
, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,
in all cases other than: (bi) sellany such merger, consolidation, sale, transfer, convey acquisition, conveyance, lease, or lease all assignment of or substantially all of its assets (including the sale of all by any Borrower or substantially all of the Equity Interests of Subsidiary with and into any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business Borrower or (ii) any Subsidiary so long as (t) no Unmatured Event other provision of this Agreement would be violated thereby, (u) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days' prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing or
(c) sell either before or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
(iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisitionthat transaction, no Event of Default shall exist or would result of such Acquisition; and
and (Cz) the Lenders' rights in any Collateral, including the case of the Acquisition existence, perfection and priority of any PersonLien thereon, to the extent are not adversely affected by that an Acquisition which is structured as a merger involving the Companyor consolidation, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or Permitted Acquisitions, and (iii)) shall be made for fair value and for at least 75% cash consideration, andPermitted Asset Dispositions.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary ------------------------------ to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for (a)-(c) above shall not apply to
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) into, with or to any other Wholly- Owned Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary of the assets or Equity Interests stock of any Wholly-Owned Subsidiary;
; and (iiic) any Subsidiary may liquidate, dissolve such purchase or wind-up if other acquisition by the Company determines in good faith that or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such liquidation or dissolution is assets (in the best interests case of an asset purchase) are for use, or such Person (in the Company case of a stock purchase) is, or after the acquisition will be, engaged in the business activities permitted by Section 6.20; (2) immediately before or ------------ after giving effect to such purchase or acquisition, no Event of Default or Default shall have occurred and is not materially disadvantageous to the Lenders;
be continuing; (iv3) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed aggregate consideration to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except be paid by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition after the date hereof (or any series of related acquisitions) is less than $3,000,000 for any single transaction or series of related transactions and less than $10,000,000 in the aggregate for all such transactions; (4) the Company is in pro forma compliance with all the financial ratios and restrictions set forth --- ----- in Section 6.8; and (5) the proceeds of any of the Effective Date;
(B) immediately after giving effect Loans hereunder are not used ----------- to finance such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in transactions. Notwithstanding the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Companyforegoing, the Company is shall not, and shall not permit any Subsidiary to, consummate any such merger, consolidation or purchase described above within the surviving Person, and
(ix) any sale, transfer or disposition 120 days immediately following the Closing Date without the prior written consent of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made Lender other than Future Acquisitions approved by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andLender.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (GTCR Golder Rauner LLC)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or (except for Investments otherwise permitted by Section 11.9,
(bthe sale or lease of Inventory in the ordinary course of business) sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for (a)-(c) above shall not apply to
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) into, with or to any other wholly-owned Subsidiary;
; (iib) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or Equity Interests stock of any wholly-owned Subsidiary;
; (iii) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viiic) any Acquisition by the Company, any Subsidiary Company or any Insurance wholly-owned Subsidiary where:
where (A1) the Acquisition assets acquired are for use in, or the Person acquired is of a Person in a line of engaged in, business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
activities permitted under Section 10.18; (B2) immediately before or after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist have occurred and be continuing; (3) the aggregate consideration paid by the Company and its Subsidiaries (including any Debt assumed or would result issued in connection therewith, the amount thereof to be calculated in accordance with GAAP, but excluding any common stock of the Parent) in connection with (x) such Acquisition (or any series of related Acquisitions) does not exceed $3,000,000 and (y) all Acquisitions made after the Effective Time does not exceed $5,000,000; (4) after giving effect to such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition will be in pro forma compliance with all of the Equity Interests or assets of Central Health Plan of Californiafinancial ratios and restrictions set forth in Section 10.6; and (5) immediately after giving effect to such Acquisition, Inc. and Universal Care, Inc. the Revolving Availability is at least $10,000,000 greater than the Revolving Outstandings; (d/b/a Brand New Day) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $500,000; and (e) Investments permitted by Section 10.19(l). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and10.11
Appears in 1 contract
Samples: Credit Agreement (Middleby Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, or, except for Investments otherwise permitted by Section 11.9,
(b) in the ordinary course of its business, sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses for: (a)-(c) above shall not apply to
(ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary (other than Resources) into the Company (provided that the Company shall be the continuing or surviving entity) into, with or to any other Subsidiary;
Wholly-Owned Subsidiary (iiother than Resources); (b) any such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary (other than Resources) of the assets or Equity Interests stock of any Subsidiary;
Wholly-Owned Subsidiary (iiiother than Resources); and (c) any Subsidiary may liquidate, dissolve or wind-up if sales and dispositions of assets (including the Company determines in good faith that such liquidation or dissolution is in stock of Subsidiaries) for at least fair market value (as determined by the best interests Board of Directors of the Company and is not materially disadvantageous to Company) so long as the Lenders;
net book value of all assets sold or otherwise disposed of in any Fiscal Year (iv) the discount or sale, in each case without recourse and other than Inventory sold in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (business and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
past practices) does not exceed five percent (vi5%) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion net book value of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business consolidated assets of the Company and its Subsidiaries as of the Effective Datelast day of the preceding Fiscal Year.";
(Bh) immediately deleting clause (a) of Section 10.21 of the Credit Agreement in its entirety and substituting the following language therefor:
(a) contributions by the Company to the capital of any of its Subsidiaries, or by any such Subsidiary to the capital of any of its Subsidiaries; provided, however, in no event shall the amount of all capital contributions and other distributions of the Company and its Subsidiaries other than Resources made to, as well as all Investments by such Persons in, Resources from and after giving effect the Fourth Amendment Closing Date, when taken together with the amount of Debt of Resources to the Company and its Subsidiaries other than Resources outstanding, exceed $1,000,000 in the aggregate at any time";
(i) deleting clause (b) of Section 10.21 of the Credit Agreement in its entirety and substituting the following language therefor:
(a) in the ordinary course of business, Investments by the Company in any Subsidiary or by any Subsidiary in the Company, by way of intercompany loans, advances or guaranties, all to the extent permitted by Section 10.7; provided, however, in no event shall the amount of all capital contributions and other distributions of the Company and its Subsidiaries other than Resources made to, as well as all Investments by such AcquisitionPersons in, no Event Resources from and after the Fourth Amendment Closing Date, when taken together with the amount of Default shall exist or would result Debt of such AcquisitionResources to the Company and its Subsidiaries other than Resources outstanding, exceed $1,000,000 in the aggregate at any time"; and
(Cj) in the case of the Acquisition of any Person, deleting Exhibit B to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. Credit Agreement in its entirety and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andsubstituting Annex C attached hereto therefor:
Appears in 1 contract
Samples: Credit Agreement (Energy West Inc)
Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to,
, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class ofInterests, or any partnership or joint venture interest in, any other PersonPerson or make any Acquisition, except for Investments otherwise permitted by Section 11.9,
in all cases other than: (bi) sellany such merger, consolidation, sale, transfer, convey acquisition, conveyance, lease, or lease all assignment of or substantially all of its assets (including the sale of all by any Borrower or substantially all of the Equity Interests of Subsidiary with and into any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business Borrower or (ii) any Subsidiary so long as (t) no Unmatured Event other provision of this Agreement would be violated thereby, (u) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing or
either before or after giving effect to that transaction, and (cz) sell the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets or Equity Interests of any Subsidiary;
Permitted Acquisitions, (iii) any Subsidiary may liquidatePermitted Asset Dispositions, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or salean IPO by Ultimate Holdings otherwise permitted hereunder, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made a SPAC Transaction, so long as such SPAC Transaction is consummated in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result 3 of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Second Amendment.
1.5 Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business 11.12.2 of the Company Credit Agreement is hereby amended and restated in its Subsidiaries entirety as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andfollows:
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary of the Parent to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other PersonPerson (or otherwise engage in any Acquisition), except for Investments otherwise permitted by Section 11.9,
or (b) sell, transfer, convey convey, lease (except leases permitted under Section 11.2(f)) or lease otherwise dispose of all or substantially all any substantial part of its assets or Capital Securities (excluding the sale or issuance of the Capital Securities of the Parent as long such issuance does not result in a Change of Control or other Event of Default or Unmatured Event of Default, but including the sale or issuance of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete in the ordinary course of business, the disposition of obsolete, uneconomic or worn-out equipment or the trade-in of equipment for equipment of equal or better value provided that such disposition or trade-in is in the ordinary course of business or the disposition or discount by any Japanese Subsidiary of a note (iipayable to it) so long as no Unmatured Event in the ordinary course of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivablesbusiness; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided Parent or into any Domestic Subsidiary that the Company shall be the continuing or surviving entity) or any other Subsidiary;
is a Full Pledging Guarantor; (ii) any such purchase or other acquisition by the Company Parent or any Domestic Subsidiary that is a Full Pledging Guarantor of the assets or Equity Interests Capital Securities of any Subsidiary;
Wholly-Owned Subsidiary and all such transferred assets are pledged under the Guaranty and Collateral Agreement for the Obligations of such Full Pledging Guarantor; (iii) any Subsidiary the Parent or its Subsidiaries may liquidate, dissolve sell or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or salediscount, in each case without recourse and in the ordinary course of business, of past due receivables overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
transaction; (iv) the Post-Closing Structural Steps may be consummated; (v) Investments made as long as no Event of Default or Unmatured Event of Default then exists or will arise therefrom, the stock or assets of Oxy-Dry Foods Blends, Inc. may be sold in accordance with an arms-length transaction provided, that the Net Cash Proceeds of such sale are applied pursuant to Section 11.9,
6.2.2(a)(i) (and the $500,000 “deductible” provided for in Section 6.2.2(a)(i) shall not apply (i.e., the full amount of the Net Cash Proceeds shall be applied)); (vi) Liens incurred as long as no Event of Default or Unmatured Event of Default then exists or will arise therefrom, the sale of other assets to Persons other than Affiliates at arms length terms provided that the Net Cash Proceeds thereof do not exceed (in compliance with the aggregate) $2,000,000 in any Fiscal Year and the Net Cash Proceeds are applied pursuant to Section 11.2,
6.2.2 to the extent required thereunder; and (vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary Parent or any Insurance Material Subsidiary where:
(A) the Acquisition business or division acquired are for use, or the Person acquired is of a Person engaged, in a line of business which is similar or complementary to the lines of business of businesses engaged in by the Company Parent and its Subsidiaries as of on the Effective DateClosing Date or a business reasonably related thereto;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of such Acquisition; andexist;
(C) the sum of the aggregate consideration to be paid by the Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with all Acquisitions under this clause (vii) plus all Investments under Section 11.11(j) shall not exceed $5,000,000;
(D) immediately after giving effect to such Acquisition, the Parent and its Subsidiaries are in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.14;
(E) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(F) reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(G) not less than ten Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent that an Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Parent’s calculation of pro forma EBITDA relating thereto;
(H) the Administrative Agent and Required Lenders shall have approved the Parent’s computation of pro forma EBITDA;
(I) the Parent or the applicable acquiring Subsidiary shall use reasonable best efforts to obtain consents in favor of the Administrative Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Loan Parties and (if delivered to the Loan Party) the selling party in favor of the Administrative Agent and the Lenders have been delivered;
(J) the provisions of Section 10.10 have been satisfied or will be satisfied within 60 days of the date of the closing of the Acquisition;
(K) all required actions under the Guaranty and Collateral Agreement (and any other applicable Collateral Document) will be satisfied simultaneously with the closing of such Acquisition;
(L) if the Acquisition which is structured as a merger involving the Companymerger, the Company Parent or a Wholly-Owned Subsidiary is the surviving Person, entity; and
(ixM) the Required Lenders shall approve of any salematerial contingent liabilities (including any environmental), transfer or disposition if any, of the Equity Interests target company or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by relating to the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andpurchased assets.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
(a) , be a party to any merger or consolidation, or make any Acquisition, purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, in any other PersonPerson (other than a Person that is, except for Investments otherwise permitted by Section 11.9,
(b) or becomes as the result of purchase or acquisition, a Subsidiary), or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment (i) of or by any Subsidiary Guarantor into, with or to the Company or another Subsidiary Guarantor or (ii) of or by any wholly-owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Loan Party or into, with or to any other wholly-owned Subsidiary;
(iib) any such purchase or other acquisition by the Company or any Subsidiary Loan Party of the assets or Equity Interests stock of any wholly-owned Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisitions;
(ivd) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(e) dispositions of inventory and worn-out, obsolete or surplus equipment in the discount or saleordinary course of business and cash, in each case without recourse cash equivalents and marketable securities in the ordinary course of business;
(f) dispositions of accounts receivable with extended terms and dispositions of defaulted accounts receivable without credit recourse in transactions that do not constitute securitizations, of past due receivables arising in each case in the ordinary course of business, but only business consistent with past practice of the Company and its Significant Subsidiaries;
(g) sales and dispositions of assets (including stock of Subsidiaries) purchased in connection with the compromise or collection thereof consistent with customary industry practice (and not as part a direct result of) a Permitted Acquisition;
(h) purchases and other acquisitions of such partnership and joint venture interests so long as the aggregate amount of investments (net of any bulk sale cash returns thereon) in such partnerships and joint ventures (excluding any such investment existing or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, for on the First Amendment Effective Date and listed on Schedule 10.9) does not, on the date any such investment is made, exceed 20% of the consolidated tangible assets of the Company and its Subsidiaries; and
(bi) any modification, replacement, renewal or extension other sales and dispositions of any Investment described in clause assets (aincluding the stock of Subsidiaries) above made for fair market value so long as (i) no such modification, replacement, renewal Event of Default or extension increases the amount Unmatured Event of such Investment except by the terms thereof in Default exists or would exist immediately after giving effect on the Effective Date thereto; and (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(Aii) the Acquisition is Net Cash Proceeds of a Person in a line of business all such sales and dispositions (excluding Net Cash Proceeds that are applied within 180 days after receipt thereof (or with respect to which is similar or complementary the Company has entered into binding commitments within 180 days after receipt thereof to apply such Net Cash Proceeds (but only to the lines of extent such Net Cash Proceeds are applied within 270 days after receipt thereof pursuant to such commitments)) to purchase revenue-producing assets used in the business of the Company and its Subsidiaries as or to consummate Permitted Acquisitions) in any Fiscal Year do not exceed the greater of (x) $50,000,000 and (y) 15% of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case consolidated tangible assets of the Acquisition Company and its Subsidiaries. For the avoidance of any Person, to the extent that an Acquisition which is structured as a merger involving the Companydoubt, the Company is granting of a Lien to secure the surviving Personrepayment of Debt or other obligations shall not, and
(ix) any salein and of itself, constitute a conveyance or transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and10.9.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
(a) , be a party to any merger or consolidation, or make any Acquisition, purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, in any other PersonPerson (other than a Person that is, except for Investments otherwise permitted by Section 11.9,
(b) or becomes as the result of purchase or acquisition, a Subsidiary), or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment (i) of or by any Loan Party into, with or to the Company or another Loan Party, (ii) of or by any wholly-owned Subsidiary into the Company or any other Loan Party or into, with or to any wholly-owned Domestic Subsidiary, (iii) of or by any wholly-owned Foreign Subsidiary into any other wholly-owned Foreign Subsidiary or (iv) of or by the Company into any wholly-owned Domestic Subsidiary (provided that (x) in each of the foregoing clauses (i), (ii) and (iv), in the case of any such merger or consolidation to which the Company shall be is a party, the Company is the surviving or continuing entity and survives or continues, as the case may be, as the ultimate parent company in the Company’s organizational structure and (y) subject to clause (x) above, in the case of clause (ii), in the case of any such merger or consolidation to which a Subsidiary Guarantor is a party, the Subsidiary Guarantor is the surviving or continuing entity) or any other Subsidiary;
(iib) any such purchase or other acquisition by the Company or any Subsidiary Loan Party of the assets or Equity Interests stock of any wholly-owned Subsidiary;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the LendersPermitted Acquisitions;
(ivd) dispositions of accounts receivable, lease receivables, other financial assets and other rights and related assets pursuant to a Permitted Securitization;
(e) dispositions of inventory and worn-out, obsolete or surplus equipment in the discount or saleordinary course of business and cash, in each case without recourse cash equivalents and marketable securities in the ordinary course of business;
(f) dispositions of accounts receivable with extended terms and dispositions of defaulted accounts receivable without credit recourse in transactions that do not constitute securitizations, of past due receivables arising in each case in the ordinary course of business, but only business consistent with past practice of the Company and its Significant Subsidiaries;
(g) sales and dispositions of assets (including stock of Subsidiaries) purchased in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),a direct result of) a Permitted Acquisition;
(vh) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date purchases and (b) any modification, replacement, renewal or extension other acquisitions of any Investment described in clause (a) above such partnership and joint venture interests so long as no such modification, replacement, renewal or extension increases the aggregate amount of investments (net of any cash returns thereon) in such Investment except partnerships and joint ventures (excluding any such investment existing or committed for on the Restatement Date and listed on Schedule 10.9) does not, on the date any such investment is made, exceed 20% of the consolidated tangible assets of the Company and its Subsidiaries;
(i) sales and dispositions of Equity Interests in any Lender acquired by virtue of any Bail-In Action or similar regulatory action; and
(j) other sales and dispositions of assets (including the stock of Subsidiaries) made for fair market value so long as (i) no Unmatured Event of Default pursuant to Section 12.1.1 or Event of Default exists or would exist immediately after giving effect thereto, (ii) in respect of any such sales or dispositions involving consideration of at least $10,000,000, at least 75% of such consideration is in the form of cash or cash equivalents (it being understood and agreed that for purposes of this Section 10.9(j), each of the following will be deemed to be cash: (A) any liabilities, as shown on the most recent consolidated balance sheet of the Company or any Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Obligations) that are assumed by the terms thereof in effect on transferee of any such assets pursuant to a customary assignment and assumption or novation agreement that releases the Effective Date Company or such Subsidiary from further liability with respect thereto; (including B) any securities, notes or other obligations or assets received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash or cash equivalents within 180 days of the sale or disposition; and (C) Debt of any Subsidiary that ceases to be a Subsidiary of the Company as a result of the accrual sale or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary disposition to the lines of business of extent that the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result are released from any guarantees of such AcquisitionDebt); and
and (Ciii) in the case Net Cash Proceeds of all such sales and dispositions are applied to prepay the Acquisition of any Person, Term Loans pursuant to Section 6.2.4(a) to the extent that an Acquisition which is structured as a merger involving required thereby. For the Companyavoidance of doubt, the Company is granting of a Lien to secure the surviving Personrepayment of Debt or other obligations shall not, and
(ix) any salein and of itself, constitute a conveyance or transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, and10.9.
Appears in 1 contract
Samples: Credit Agreement (Regal Beloit Corp)
Mergers, Consolidations, Sales. NotPermit, and not or ------------------------------ permit any Subsidiary of its Subsidiaries to,
(a) , be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) Person or sell, transfer, convey or lease all or substantially all any substantial part of its assets (including the sale of all assets, or substantially all of the Equity Interests of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply tofor:
(ia) any merger, such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly owned Subsidiary into of the Company (provided that into, with or to the Company shall be the continuing or surviving entity) or any other Subsidiarywholly owned Subsidiary of the Company;
(iib) any such purchase or other acquisition by the Company or any wholly owned Subsidiary of the assets or Equity Interests stock of any Subsidiarywholly owned Subsidiary of the Company;
(iiic) any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests sale (for not less than fair market value) of the Company Company's presently-owned facility located in Santa Clara, California in connection with the relocation of all or a portion of the operations taking place at that location or the sale and is not materially disadvantageous to the Lendersleaseback of all or a portion of such facility;
(ivd) the discount sale (for not less than fair market value) and lease-back of the new warehouse facility to be acquired by the Company as set forth in the proviso to Section 7.8; -----------
(e) any sale by the Company or sale, in each case without recourse and any of its Subsidiaries in the ordinary course of business, business of past due receivables arising assets which are obsolete or are no longer used or useful in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and or any of its Subsidiaries as of the Effective DateSubsidiaries;
(Bf) immediately after giving effect to such Acquisition, no Event the purchase or other acquisition of Default shall exist all or would result substantially all of the assets or stock of any other Person in the same line of business as the Company (or one related thereto) provided that the purchase price of such Acquisitionassets or stock, -------- including therein the amount of any liabilities assumed in connection therewith, shall not exceed $10,000,000 in the aggregate in any Fiscal Year; and
(Cg) in sales, transfers, conveyances or leases of assets, or contributions of assets to joint ventures or partnerships, provided that the case fair market value of the Acquisition of any Personassets sold, to the extent that an Acquisition which is structured as a merger involving the Company-------- transferred, the Company is the surviving Personconveyed, and
(ix) any sale, transfer leased or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary contributed pursuant to this Section 11.4 subsection (other than those permitted by clause (iig) or (iii)) in any Fiscal Year shall be made for fair value and for at least 75% cash consideration, andnot exceed five percent of Tangible Net Worth as of the last day of the immediately preceding Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Wyle Electronics)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to,
(a) Neither the Borrower nor any Subsidiary shall be a party to any merger, amalgamation, consolidation, Division or exchange of stock unless the Borrower shall be the surviving entity with respect to any such transaction to which the Borrower is a party and the Guarantor shall be the survivor of any merger or consolidationamalgamation with any other Subsidiary or a Subsidiary shall be the surviving entity (and continue to be a Subsidiary) with respect to any such transactions to which one or more Subsidiaries is a party (and the conditions set forth below are satisfied), or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests stock of any class of, or any partnership partnership, membership or joint venture or other interest in, any other PersonPerson except as otherwise provided in this §8.4. Notwithstanding the foregoing, except for Investments the Borrower and its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock of any class of, or joint venture or other interest in, any Person if the following conditions have been met: (i) the proposed transaction will not otherwise create a Default or an Event of Default hereunder; and (ii) the business to be acquired predominantly involves (A) the collection, transfer, hauling, disposal or recycling of solid waste or thermal soil remediation, or (B) other lines of businesses currently engaged in, or related, associated, complementary or supplementary thereto, whether from an operational, business, financial, technical or administrative standpoint; provided that the Borrower or its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock of any class of, or any partnership, membership or joint venture or other interest in, any Persons in unrelated businesses, not to exceed a total aggregate amount after the Effective Date of $600,000,000. Notwithstanding anything herein to the contrary, the ability of the Subsidiaries of the Borrower to incur any Indebtedness in connection with any transaction permitted pursuant to this §8.4 shall be governed by Section 11.9,§8.1.
(b) Neither the Borrower nor any Subsidiary shall sell, transfer, convey or lease all any assets or substantially all group of its assets (assets, including the sale of all or substantially all of the Equity Interests transfer of any Subsidiary) property owned by the Borrower or any Subsidiary in order then or thereafter to lease such property or lease other property which the Borrower or any Subsidiary intends to use for substantially the same purpose as the property being sold or transferred, or sell or assign, with or without recourse, any receivables, except (i) for sales transfers of inventory real or personal property among the Borrower and obsolete equipment in its Subsidiaries or among the ordinary course Subsidiaries of business or the Borrower, (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell continuing, or assign with would result therefrom, sales of assets or without recourse any receivablespursuant to a sale-leaseback transaction; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
(i) any merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) net cash proceeds from any such purchase sale or other acquisition sale-leaseback shall, within 180 days, either be used to pay down outstanding Loans under this Agreement or be reinvested by the Company or any Subsidiary such Person in assets of the assets business of the Borrower and its Subsidiaries, used for working capital, or Equity Interests of any Subsidiary;
used for other general corporate purposes, (iii) any Subsidiary may liquidatesales of accounts receivable (and contract rights, dissolve general intangibles or wind-up if the Company determines in good faith that such liquidation chattel paper related thereto) more than sixty (60) days past due sold or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and assigned in the ordinary course of business, of collecting past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing onaccounts, or contractually committed to or contemplated as of, the Effective Date and (biv) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any Acquisition by the Company, any Subsidiary or any Insurance Subsidiary where:
(A) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, anda Permitted Receivables Transaction.
Appears in 1 contract
Mergers, Consolidations, Sales. Notof Assets and Acquisitions. Merge into or consolidate with any other person, and not or permit any Subsidiary to,other person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of the Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:
(a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all of its assets (including the sale of all or substantially all of the Equity Interests of any Subsidiary) except (i) for sales the purchase and sale of inventory and obsolete equipment in the ordinary course of business by the Borrower or any Subsidiary, (ii) the acquisition or lease (as lessee pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business by the Borrower or any Subsidiary (iv) the sale of Tractor Trailers (other than pursuant to Permitted Program Affiliate Transactions), which, in the Borrower’s or any Subsidiary’s reasonable opinion, are, obsolete, uneconomic or no longer useful in the conduct of the Borrower’s or such Subsidiary’s business or otherwise require upgrading, or (v) the sale of Permitted Investments in the ordinary course of business; provided, that with respect to sales of Tractor Trailers sold to a Program Affiliate, such Tractor Trailers shall not be required to be obsolete, uneconomic or no longer useful in the conduct of the Borrower’s or such Subsidiary’s business and shall not be subject to the foregoing proviso, so long as the consideration for such sales consists solely of cash and/or a promissory note pledged to the Collateral Agent pursuant to the applicable Collateral Agreement;
(b) if at the time thereof and immediately after giving effect thereto no Unmatured Event of Default or Event of Default has shall have occurred and is be continuing or
(c) sell or assign with or without recourse any receivables; except that the restrictions set forth in clauses (a)-(c) above shall not apply to
would result therefrom, (i) any the merger, consolidation, sale, transfer, conveyance, lease consolidation or assignment amalgamation of or by any Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or any other Subsidiary;
(ii) any such purchase or other acquisition by the Company or any Subsidiary of the assets Borrower into (or Equity Interests with) the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger, consolidation or amalgamation or consolidation of any Subsidiary;
Subsidiary into or with any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is a Subsidiary Loan Party and, in the case of each of clauses (i) and (ii), no person other than the Borrower or Subsidiary Loan Party receives any consideration, (iii) the merger or consolidation of any Subsidiary may liquidatethat is not a Subsidiary Loan Party into or with any other Subsidiary that is not a Subsidiary Loan Party, dissolve (iv) the liquidation or wind-up dissolution or change in form of entity of any Subsidiary (other than the Borrower) if the Company Borrower determines in good faith that such liquidation liquidation, dissolution or dissolution change in form is in the best interests of the Company Borrower and is not materially disadvantageous to the LendersLenders or (v) any Subsidiary may merge, consolidate or amalgamate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 5.10;
(ivc) sales, transfers, leases or other dispositions to the Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided, that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (c) shall be made in compliance with Section 6.07 and shall (x) be made at a time when the Payment Conditions are satisfied or (y) not in the aggregate exceed in any fiscal year of the Borrower, $35.0 million;
(d) Sale and Lease-Back Transactions permitted by Section 6.03;
(e) Investments permitted by Section 6.04, Permitted Liens, Restricted Payments permitted by Section 6.06 and purchases and leases permitted by Section 6.10;
(f) the discount sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 6.05; provided, that (i) the aggregate gross proceeds (including noncash proceeds) of any or all assets sold, transferred, leased, licensed or otherwise disposed of in reliance upon this paragraph (g) shall not exceed, in any fiscal year of the Borrower, $35.0 million, (ii) no Default or Event of Default exists or would result therefrom and (iii) with respect to any such sale, transfer, lease or other disposition with aggregate gross proceeds (including noncash proceeds) in each case without recourse excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;
(h) Permitted Business Acquisitions (including any merger or consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided, that following any such merger or consolidation or amalgamation, (i) involving the Borrower, the Borrower is the surviving corporation, (ii) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Wholly Owned Domestic Subsidiary and (iii) involving a Foreign Subsidiary, the surviving or resulting entity shall be a Wholly Owned Subsidiary;
(i) leases, licenses, or subleases or sublicenses of any real or personal property in the ordinary course of business;
(j) sales, leases or other dispositions of past due receivables arising inventory of the Borrower and its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in the ordinary course operation of businessthe business of the Borrower or any of the Subsidiaries;
(k) [Reserved];
(l) any exchange of assets for services and/or other assets of comparable or greater value; provided, but only that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in connection a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value in excess of $5.0 million, the compromise Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value in excess of $10.0 million, such exchange shall have been approved by at least a majority of the Board of Directors of Holdings or collection thereof consistent with customary industry practice the Borrower; provided, further, that (A) the aggregate gross consideration (including exchange assets, other noncash consideration and not as part cash proceeds) of any bulk sale or financing all assets exchanged in reliance upon this paragraph (m) shall not exceed, in any fiscal year of receivables),the Borrower, $30.0 million, (B) no Default or Event of Default exists or would result therefrom, and (C) with respect to any such exchange with aggregate gross consideration in excess of $10.0 million, immediately after giving effect thereto, the Borrower shall be in Pro Forma Compliance;
(vm) Investments made Tractor Trailer Replacements; provided, that any disposition of a Tractor Trailer pursuant to a Tractor Trailer Replacement shall be for an amount (including any credits towards the purchase of a replacement Tractor Trailer) at least equal to the fair market value thereof (as determined in good faith by Borrower or any Subsidiary); and
(n) the (i) purchase of fuel, insurance, tires and various other types of equipment and services related to the trucking business on behalf of Program Affiliates and/or (ii) purchase of fuel, insurance, tires and various other types of equipment and services related to the trucking business and sell or otherwise transfer the same to Program Affiliates, in each case in accordance with Section 11.9,
(vi) Liens incurred the past practices of the Borrower or any Subsidiary, as in compliance with Section 11.2,
(vii) any Acquisition (a) existing oneffect on the Closing Date, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no in any such modification, replacement, renewal case the Borrower or extension increases such Subsidiary deducts the amount of such Investment except by purchases from the terms thereof weekly settlement or settlements paid to such Program Affiliate pursuant to its Affiliate Billing Program. Notwithstanding anything to the contrary contained in effect on the Effective Date Section 6.05 above, (including as a result i) no sale, transfer or other disposition of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise assets shall be permitted by this Section 11.4,
6.05 (viiiother than sales, transfers, leases, licenses or other dispositions to Loan Parties) any Acquisition by the Companyunless such disposition is for fair market value, any Subsidiary or any Insurance Subsidiary where:
(Aii) the Acquisition is of a Person in a line of business which is similar or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Date;
(B) immediately after giving effect to such Acquisition, no Event of Default shall exist or would result of such Acquisition; and
(C) in the case of the Acquisition of any Person, to the extent that an Acquisition which is structured as a merger involving the Company, the Company is the surviving Person, and
(ix) any sale, transfer or other disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those shall be permitted by clause paragraph (iia) or (d) of this Section 6.05 unless such disposition is for at least 75% cash consideration and (iii)) no sale, transfer or other disposition of assets in excess of $10.0 million shall be made for fair value and permitted by paragraph (g) of this Section 6.05 unless such disposition is for at least 75% cash consideration; provided that the provisions of clause (ii) shall not apply to any individual transaction or series of related transactions involving assets with a fair market value of less than $7.5 million or to other transactions involving assets with a fair market value of not more than $10.0 million in the aggregate for all such transactions during the term of this Agreement; provided, andfurther, that for purposes of clause (iii), (a) the amount of any liabilities (as shown on the Borrower’s or any Subsidiary’s most recent balance sheet or in the notes thereto) of the Borrower or any Subsidiary of the Borrower (other than liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Borrower or such Subsidiary of the Borrower from such transferee that are converted by the Borrower or such Subsidiary of the Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by the Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $35.0 million at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 6.05 to any person other than Holdings, the Borrower or any Subsidiary Loan Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the Borrower in order to evidence the foregoing.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to,
, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, except for Investments otherwise permitted by Section 11.9,
(b) sell, transfer, convey or lease all or substantially all any substantial part of its assets or Capital Securities (including the sale of all or substantially all of the Equity Interests Capital Securities of any Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business business, or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing or
(c) sell or assign with or without recourse any receivables; , except that the restrictions set forth in clauses (a)-(c) above shall not apply to
for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company (provided that the Company shall be the continuing or surviving entity) or into any other domestic Wholly-Owned Subsidiary;
; (ii) any such purchase or other acquisition by the Company or any domestic Wholly-Owned Subsidiary of the assets or Equity Interests Capital Securities of any Wholly-Owned Subsidiary;
; and (iii) the Stockamp Acquisition and any Subsidiary may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(iv) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables),
(v) Investments made in accordance with Section 11.9,
(vi) Liens incurred in compliance with Section 11.2,
(vii) any Acquisition (a) existing on, or contractually committed to or contemplated as of, the Effective Date and (b) any modification, replacement, renewal or extension of any Investment described in clause (a) above so long as no such modification, replacement, renewal or extension increases the amount of such Investment except by the terms thereof in effect on the Effective Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or as otherwise permitted by this Section 11.4,
(viii) any other Acquisition by the Company, any Subsidiary Company or any Insurance Subsidiary wheredomestic Wholly-Owned Subsidiarx xxxxx:
(A) the Acquisition business or division acquired is of a Person in a line of business which is similar the consulting or complementary to the lines of business of the Company and its Subsidiaries as of the Effective Dateprofessional service business;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist or would result of such Acquisition; andexist;
(C) the aggregate cost (including assumed Debt) of such Acquisition (or series of related Acquisitions) shall not exceed an amount equal to fifty percent (50%) of Consolidated EBITDA for the period of twelve consecutive months most recently ended;
(D) immediately after giving effect to such Acquisition, the Company is compliance on a Pro Forma Basis with the Consolidated Leverage Ratio and restrictions set forth in Section 11.12;
(E) with respect to any Acquisition or related series of Acquisitions with aggregate consideration in excess of $10,000,000.00, after giving effect to such Acquisition or related series of Acquisitions on a Pro Forma Basis, the Consolidated Leverage Ratio is at least 0.25:1.0 lower than (or, one-quarter turn inside) the maximum Consolidated Leverage Ratio permitted under Section 11.12.2 for the current period;
(F) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(G) reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may reasonably require to evidence the termination of Liens on the assets or business to be acquired;
(H) not less than ten (10) Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the extent that an Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of EBITDA on a Pro Forma Basis relating thereto;
(I) the Administrative Agent shall have approved the Company’s computation of Consolidated EBITDA on a Pro Forma Basis, which approval shall not be unreasonably withheld or delayed;
(J) simultaneously with the closing of such Acquisition, the target company (if such Acquisition which is structured as a purchase of equity) or the Loan Party (if such Acquisition is structured as a purchase of assets or a merger involving and a Loan Party is the Companysurviving entity) executes and delivers to Administrative Agent an unlimited Guaranty of the Obligations, or at the option of Administrative Agent in Administrative Agent’s absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company, and their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations; and
(K) if the Acquisition is structured as a merger, the Company is the surviving Person, and
(ix) any sale, transfer or disposition of the Equity Interests or assets of Central Health Plan of California, Inc. and Universal Care, Inc. (d/b/a Brand New Day). All sales, transfers or dispositions made by the Company or any Subsidiary pursuant to this Section 11.4 (other than those permitted by clause (ii) or (iii)) shall be made for fair value and for at least 75% cash consideration, andentity.
Appears in 1 contract
