Mergers, Consolidations, Sales. (a) Make any Acquisition; nor merge or consolidate or amalgamate with any other Person or take any other action having a similar effect, nor enter into any joint venture or similar arrangement with any other Person, except (i) any Acquisition by the Company or any Guarantor where (collectively, “Permitted Acquisitions”): (A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar to those engaged in by the Loan Parties on the Closing Date; (B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist; (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) shall not exceed $5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,000; (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 11.13; (E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition; (F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000; (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 require to evidence the termination of Liens on the assets or business to be acquired, provided that the Lien termination may occur simultaneously with the closing of such Acquisition; (H) not less than ten Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto; (I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA; (J) 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 (K) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l). (b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset Disposition.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any other Loan Party to, (a) Make be a party to any merger or consolidation, or Acquisition, (b) sell, transfer, convey or lease all or any substantial or material part of its assets or Capital Securities (including the sale of Capital Securities of any Subsidiary) except for sales of inventory, excess equipment, and obsolete equipment in the ordinary course of business, (c) sell, transfer or assign any portion of the Real Estate Collateral unless the Net Cash Proceeds received therefrom are applied to the Obligations as set forth in this Agreement and the Guaranty and Collateral Agreement, or (d) sell or assign with or without recourse any Accounts, trademarks, patents, or source codes to any software, except for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Wholly-Owned Subsidiary into the Company or a domestic Wholly-Owned Subsidiary if the Company or such domestic Wholly-Owned Subsidiary is the surviving entity; (ii) any such purchase or other acquisition by the Company of the assets or Capital Securities of any Wholly-Owned Subsidiary; (iii) the Gelco Acquisition; nor merge or consolidate or amalgamate with any other Person or take any other action having a similar effect, nor enter into any joint venture or similar arrangement with any other Person, except and (iiv) any Acquisition by the Company or any Guarantor where (collectively, “Permitted Acquisitions”):where:
(A) the business or division acquired are for use, or the Person acquired is engaged, in the businesses similar to those engaged in by the Loan Parties on the Closing Dateor businesses reasonably related thereto;
(B) at the time of the consummation of such Acquisition, the Administrative Agent shall have received 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 existexist or is reasonably likely to occur as a result of such Acquisition together with a pro forma Compliance Certificate for the next two consecutive fiscal quarters (including the fiscal quarter in which the Acquisition occurs);
(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) shall not exceed $5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(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 11.13;
(E) in the case of the Acquisition of any Person, the Board board of Directors directors or similar governing body of such Person has approved such Acquisition;
(FD) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(G) reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies current drafts 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, provided that the Lien termination may occur simultaneously with and promptly after the closing of such AcquisitionAcquisition fully-executed and complete copies of all such documents;
(HE) for each Acquisition, not less than ten Business Days prior to such Acquisition, 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), Uniform Commercial Code, tax and judgment searches from the material appropriate jurisdictions, the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating theretothereto and the delivery of a pro-forma consolidated balance sheet and income statement adjusted after giving effect to the consummation of the proposed Acquisition;
(IF) 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) executes and delivers to Administrative Agent (a) such documents, and other agreement, 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, and their respective Subsidiaries, each in form and substance satisfactory to Administrative Agent and Required Lenders shall have approved (b) an unlimited guaranty of the CompanyObligations, or at the option of Administrative Agent in Administrative Agent’s computation 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 pro forma EBITDA;
(J) consents have been obtained rights in favor of Administrative Agent with respect to the Acquisition Documents for such Acquisition (consented to by the seller in such Acquisition) and the Administrative Agent and the Lenders shall be permitted to rely on the collateral assignment of rights and indemnities under the related acquisition documents and legal opinions of counsel for the delivered by such Loan Parties and (if delivered to the Loan Party) the selling party Party in favor of the Administrative Agent and the Lenders have been delivered; andconnection with such Acquisition;
(KG) if the Acquisition is structured as a merger, the Company or a Grantor (as such term is defined in the Guaranty and Collateral Agreement) is the surviving entity;
(H) the provisions of Section 10.10 10.14 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).and
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (iI) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall consideration to be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment paid by the Loan Parties (including any Debt assumed or issued in connection therewith, the amount of such paymentsthereof to be calculated in accordance with GAAP, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration consideration, and any earn-outs or deferred purchase price payments to be calculated in accordance with GAAP) in connection with such Acquisition (or any series of related Acquisitions), together with all fees and expenses incurred in connection with such acquisition does not exceed $25,000,000 per calendar year for any Asset Dispositionall Acquisitions during such calendar year.
Appears in 1 contract
Mergers, Consolidations, Sales. (a) Make Not, and not permit any Acquisition; nor merge Subsidiary to, be a party to any merger or consolidate consolidation, or amalgamate with purchase or otherwise acquire all or substantially all of the assets or any other Person stock of any class of, or take any other action having a similar effect, nor enter into any partnership or joint venture or similar arrangement with interest in, any other Person, or, except in the ordinary course of its business, sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for: (ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company or into, with or to any other Subsidiary; (b) any such purchase or other acquisition by the Company or any Subsidiary of the assets or stock of any Subsidiary; (c) any Acquisition by the Company or any Guarantor where Subsidiary if (collectively, “Permitted Acquisitions”):
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar to those engaged in by the Loan Parties on the Closing Date;
(B1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
, (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) shall not exceed $5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(D2) 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;
9.6, (E3) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(G) reasonably prior all auto manufacturers doing business with such Person have consented 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, (provided that the Lien termination may occur simultaneously auto manufacturers doing business with the closing of such Acquisition;
(H) acquired Person need not less than ten Business Days prior have consented to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA;
(J) 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
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Asset Disposition 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 Acquisition back to the seller thereof for a price in cash at least equal to the fair market value (as determined by the Board total amount of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the cash consideration therefore received paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments and other similar consideration) within 180 days if such auto manufacturers have not consented to such Acquisition, which option is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet)otherwise unconditional, of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received which option must be exercised by the Company or any the applicable Subsidiary within such Subsidiary from period if such transferee that consents are converted by not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company or such Subsidiary into cash (has delivered a certificate to the extent 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 cash received), shall be deemed to be cash for purposes case of this provision and the definition of Net Cash Proceeds, a certificate delivered after such Acquisition) met; and (Cd) sales and dispositions ("Dispositions") of assets (including the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration stock of Subsidiaries) for any Asset Disposition.at least fair market value (as
Appears in 1 contract
Mergers, Consolidations, Sales. No Borrower will be party to any merger or consolidation, unless (a) Make any Acquisition; nor merge or consolidate or amalgamate with any other Person or take any other action having a similar effect, nor enter into any joint venture or similar arrangement with any other Person, except either (i) any Acquisition by such Borrower (or, in the Company case of a merger or any Guarantor where consolidation between a Borrower and another Borrower, either of such Borrowers) is the Person surviving such transaction or (collectivelyii) if such Borrower is not the Person surviving such transaction, “Permitted Acquisitions”):
(A) such Borrower shall have notified the business or division acquired are for useLenders in writing of the identity of the surviving Person and the Required Lenders shall not have objected thereto in writing within 15 Business Days of such notice, or the Person acquired is engaged, in businesses similar to those engaged in by the Loan Parties on the Closing Date;
(B) immediately before and after giving effect if the Borrower that is a party to such Acquisitiontransaction is organized under the laws of the United States or any State thereof or the District of Columbia, no Event the Person surviving such transaction shall be organized under the laws of Default the United States or Unmatured Event any State thereof or the District of Default shall exist;
Columbia, (C) if the aggregate consideration Borrower that is party to be paid by such transaction is organized under the Loan Parties (including any Debt assumed laws of Canada or issued in connection therewithone of its provinces, the amount thereof to Person surviving such transaction shall be calculated in accordance with GAAPorganized under the laws of Canada or one of its provinces, (D) in connection with the Person surviving such Acquisition transaction (or any series of related AcquisitionsI) shall not exceed $5,000,000have expressly assumed all of the rights and obligations of such Borrower under the Financing Documents in a manner satisfactory to the applicable Administrative Agent and (II) made representations and delivered opinions of counsel (unless the applicable Administrative Agent shall have indicated that no such opinion of counsel is required), in each case in form and all substance satisfactory to the applicable Administrative Agent as to the valid existence of such Acquisitions in any Fiscal Year shall not exceed $15,000,000;
Person, as to the power and authorization of such Person to assume such rights and obligations and as to the validity and binding nature of the Financing Documents on such Person and (Db) 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;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(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 require to evidence the termination of Liens on the assets or business to be acquired, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(H) not less than ten Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA;
(J) 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
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold have occurred and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not be continuing. No Borrower will permit any of its Subsidiaries toto be a party to any merger or consolidation, consummate an Asset Disposition unless (AAA) the Company Person surviving such transaction is such Borrower or a Subsidiary of the Company, (BB) immediately after giving effect to such transaction, no Default shall have occurred and be continuing, (CC) if the Subsidiary of a Borrower that is party to such transaction is a Guarantor, the Person surviving such transaction shall be a Borrower or a Guarantor, (DD) if the Subsidiary of a Borrower that is a party to such transaction is organized under the laws of the United States or any State thereof or the SubsidiaryDistrict of Columbia, as the case may be) receives consideration at Person surviving such transaction shall be organized under the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution laws of the Board United States or any State thereof or the District of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets Columbia, and (BEE) at least 75% if the Subsidiary of a Borrower that is party to such transaction is organized under the consideration therefore received by laws of Canada or one of its provinces, the Company Person surviving such transaction shall be organized under the laws of Canada or one of its provinces (provided that if such Subsidiary is a Canadian Credit Party, its guarantee under the applicable Security Document shall not become void, unenforceable or otherwise limited by financial assistance or other applicable provisions of corporate law). The Borrowers will not, and will not permit any of their Subsidiaries to, except in the form normal course of cash; provided that their business, sell (other than (i) a sale of Receivables pursuant to a Permitted Receivables Facility or (ii) a sale in connection with a sale-leaseback transaction), transfer, convey, exchange, or lease all or any part of their assets if the amount sum of (x) any liabilities (as shown on the Company’s or book value of such Subsidiary’s most recent balance sheet)assets, of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and plus (y) any securitiesthe book value of all other assets sold, notes transferred, conveyed, exchanged or other obligations received leased by the Company Borrowers and their Subsidiaries (other than sales of inventory in the normal course of business) during the previous twelve-month period (such sum, the “Aggregate Transferred Asset Value”), represents (a) for the period from and including the Effective Date through but excluding the second anniversary thereof, 25% or any such Subsidiary from such transferee that are converted by more of Consolidated Shareholders’ Equity at the Company or such Subsidiary into cash end of the immediately preceding month (provided however that, to the extent such Aggregate Transferred Asset Value exceeds 15% of Consolidated Shareholders’ Equity at the end of the cash receivedimmediately preceding month, at least 50% of such excess must be attributable to the sale, transfer, conveyance, exchange or lease of redundant assets), shall be deemed to be cash and (b) for the period from and after the second anniversary of the Effective Date, 15% or more of Consolidated Stockholders’ Equity at the end of the immediately preceding month (it being understood that, for purposes of calculating compliance with this provision clause (b) at any time prior to the third anniversary of the Effective Date, the Aggregate Transferred Asset Value of assets so sold, transferred, conveyed, exchanged or leased during the relevant twelve month period shall equal the lesser of the actual book value of such assets so sold, transferred, conveyed, exchanged or leased during such period and the definition annualized book value of Net Cash Proceedssuch assets so sold, and transferred, conveyed, exchanged or leased since the second anniversary of the Effective Date). The restriction set forth in the immediately preceding sentence shall not restrict or be applicable to (Ci) any Lien granted or incurred with respect to any assets of the Administrative Agent promptly Borrowers or any of their Subsidiaries or (ii) any transfer of assets from any Borrower to a Wholly-Owned Consolidated Subsidiary, or from a Subsidiary of any Borrower to such Borrower or a Wholly-Owned Consolidated Subsidiary. For the avoidance of doubt, any sale, transfer, conveyance, exchange or lease of assets comprising Collateral shall obtain a first priority security interest in any non-cash consideration for any Asset Dispositionbe subject to Section 5(e) of the U.S. Security Agreement or Section 5(d) of the Canadian Security Agreement, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Ryerson Inc.)
Mergers, Consolidations, Sales. Borrower agrees that it will not, and not permit any other Parent Entity to, (a) Make be a party to any Acquisition; nor merge merger or consolidate consolidation, or amalgamate with purchase or otherwise acquire all or substantially all of the assets or any other Person Capital Securities of any class of, or take any other action having a similar effect, nor enter into any partnership or joint venture or similar arrangement with interest in, any other Person, (b) sell, transfer, convey or lease all or any substantial part of its assets or Capital Securities (including the sale of Capital Securities of any Subsidiary) except for sales of inventory in the ordinary course of business, or (c) sell or assign with or without recourse any receivables; except for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Parent Entity into Borrower; (ii) any such purchase or other acquisition by any Credit Party of the assets or Capital Securities of any Company; (iii) Permitted Intercompany Mergers; (iv) the Concord Acquisition; and (v) any Acquisition by the Company or any Guarantor where (collectively, “Permitted Acquisitions”):a Credit Party where:
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar to those or complementary lines of business engaged in by the Loan Parties Companies on the Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
(C) the aggregate consideration Consideration to be paid by the Loan Parties Parent Entities (including any Debt Indebtedness 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) shall not exceed is less than the greater (1) of Ten Million Dollars ($5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,00010,000,000) or (2) fifty percent (50%) of Consolidated Net Worth for the most recently completed fiscal quarter of Parent;
(D) immediately before and after giving effect to such Acquisition, the Company Borrower is in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.13;
(E) in the case of the Acquisition of any Person, the Board board of Directors directors or similar governing body of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(G) reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies current drafts (to be updated with material changes) 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, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(HG) not less fewer than ten Business Days prior to such Acquisition, 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 twelve (12) month period for which they are available and as otherwise available), the material terms and conditions, including economic terms, of the proposed Acquisition, and the CompanyParent’s calculation of pro forma EBITDA relating thereto;
(IH) the Administrative Agent and Required Lenders shall have approved the CompanyParent’s computation of pro forma EBITDA, in its good faith credit judgment;
(J) 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
(KI) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).;
(bJ) Sellin the case of a merger, leaseamalgamation or other combination including Borrower, licenseBorrower shall be the surviving entity;
(K) in the case of a merger, transferamalgamation or other combination including a Credit Party (other than Borrower), assign such Credit Party shall be the surviving entity; and
(L) simultaneously with the closing of such Acquisition, the target company (if such Acquisition is structured as a purchase of equity) or otherwise dispose the Parent Entity (if such Acquisition is structured as a purchase of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one assets or a series of transactionsmerger and a Parent Entity is the surviving entity) executes and delivers to Administrative Agent (1) such documents necessary to grant to Administrative Agent, other than inventory sold in for the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any benefit of the foregoing Lenders, a first priority Lien (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise subject to Liens expressly permitted pursuant to Section 11.6 or if (i11.2(h)) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of in all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount assets of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 target company or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall notsurviving company, and shall not permit any of its Subsidiaries totheir respective Subsidiaries, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal each in form and substance reasonably satisfactory to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C2) an unlimited guaranty of payment, or at the option of Administrative Agent promptly shall obtain in Administrative Agent’s absolute discretion, a first priority security interest joinder agreement satisfactory to Administrative Agent in any non-cash consideration 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 any Asset Dispositionthe Obligations, and (3) such opinions of counsel with respect to the target company as required by Administrative Agent, in its reasonable discretion.
Appears in 1 contract
Mergers, Consolidations, Sales. (a) Make any Acquisition; nor merge or consolidate or amalgamate with Not, and not permit any other Person ------------------------------ Loan Party to, be a party to any merger or take consolidation, or purchase or otherwise acquire all or substantially all of the assets or any other action having a similar effectCapital Securities of any class of, nor enter into or any partnership or joint venture or similar arrangement with interest in, any other Person, except for (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Loan Party into another Loan Party; (ii) any such purchase or other acquisition by the Loan Parties of the assets or Capital Securities of any Wholly-Owned Subsidiary; and (iii) any Acquisition by the Company or any Guarantor where (collectively, “Permitted Acquisitions”):domestic Wholly-Owned Subsidiary where:
(A) the business or division acquired are for use, or the Person acquired is engaged, in the businesses similar to those engaged in by the Loan Parties on the Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
(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) shall not exceed is less than $5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,00075,000,000;
(D) immediately after giving effect to such Acquisition, the Company is Loan Parties are in pro forma compliance with all the financial ratios and restrictions set forth in Section 11.13;11.14; -------------
(E) in the case of the Acquisition of any Person, the Board board of Directors directors or similar governing body of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(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 require to evidence the termination of Liens on the assets or business to be acquired, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(HG) not less than ten Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s Loan Parties' calculation of pro forma EBITDA relating thereto;
(IH) the Administrative Agent and Required Lenders shall have approved the Company’s Loan Parties' computation of pro forma EBITDA;
(JI) 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;
(KJ) the provisions of Section 10.10 10.9 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).------------
(bK) Sellsimultaneously with the closing of such Acquisition, lease, license, transfer, assign the target company (if such Acquisition is structured as a purchase of equity) or otherwise dispose the Loan Party (if such Acquisition is structured as a purchase of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one assets or a series merger and a Loan Party is the surviving entity) executes and delivers to Administrative Agent an unlimited Guaranty of transactionsthe Obligations, other than inventory sold or at the option of Administrative Agent in the ordinary course of business upon customary credit terms and sales of material Administrative Agent's absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or equipment no longer useful in the businesssurviving company, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations; and
(other than in reliance on clauses (iiL) and (iii) below) shall be less than 1% of if the Total Assets at such time and ifAcquisition is structured as a merger, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on Company is the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, howeversurviving entity or, in the case alternative, the survivor of any such merger is a Wholly-Owned Subsidiary of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset Disposition.
Appears in 1 contract
Mergers, Consolidations, Sales. (a) Make Not, and not permit any Acquisition; nor merge Subsidiary to, be a party to any merger or consolidate consolidation, or amalgamate with purchase or otherwise acquire all or substantially all of the assets, or any other Person stock of any class of, or take any other action having a similar effect, nor enter into any partnership or joint venture or similar arrangement with interest in, any other Person, or, except in the ordinary course of its business, sell, transfer, convey or lease all or any substantial part of its assets or sell or assign with or without recourse any receivables, EXCEPT for:
(a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company or into, with or to any other wholly owned Subsidiary;
(b) negotiated friendly acquisitions of any Person which is in a line of business substantially similar to the business of the Company and its Subsidiaries, provided that (i) the total consideration paid or given for all such acquisitions during any Acquisition by consecutive eighteen month period shall not exceed $25,000,000 (exclusive of the value of common stock of the Company or used as consideration in connection with any Guarantor where such acquisition); (collectively, “Permitted Acquisitions”):
(Aii) the business or division proforma combined Funded Debt/Operating Cash Flow Ratio as of the effective date of any such acquisition of the Company and the acquired are Person, for use, or the Person acquired is engaged, in businesses similar to those engaged in by four Fiscal Quarters most recently ended at the Loan Parties on the Closing Date;
time of such effective date does not exceed 2.75:1; (Biii) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;exist before or after giving effect to such acquisition; (iv) the Agent shall have received a certificate from the Company satisfactory to the Agent as to compliance by the Company with preceding clauses (i) through (iii); and (v) any acquisition of stock of a Person shall not be less than 80% of the issued and outstanding capital stock of such Person.
(Cc) the aggregate consideration to be paid Sale and Leaseback of property comprising assets employed by the Loan Parties (including any Debt assumed or issued in connection therewithCompany's Coz division, provided the aggregate amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (or any series of related Acquisitions) shall not exceed $5,000,000, and all such Acquisitions in any Fiscal Year Sale and Leasebacks shall not exceed $15,000,000;
(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 11.13;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(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 require to evidence the termination of Liens on the assets or business to be acquired, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(H) not less than ten Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA;
(J) 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
(Kd) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, leasetransfer or disposition of any fixed asset(s), license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if as long as either: (i) during any fiscal year, the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default consideration paid or Event of Default shall exist, (ii) sales of equipment as given to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary is less than 5% of the Company's consolidated assets as reflected on the Company's then most recent audited financial statements, or (ii) the Company uses the proceeds of such transaction to finance the purchase of replacement fixed asset(s), delivers to the Agent written evidence of the use of the proceeds, and such replacement fixed asset(s) is free and clear of all liens; PROVIDED, HOWEVER, that are as to all mergers, consolidations, acquisitions, sales and transfers no Event of Default or Unmatured Event of Default shall have occurred and be continuing or will result therefrom. For purposes of this SECTION 10.13, for all such transactions, the term "consideration" shall include the amount of any indebtedness for borrowed money assumed by the transferee Company PLUS the amount, if any, by which the difference of any such assets such that (a) the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received amount of the liabilities of the acquired Person assumed by the Company or any such Subsidiary from such transferee that are converted LESS (b) the amount of the indebtedness for borrowed money assumed by the Company or such Subsidiary into cash (to exceeds the extent value of the cash received), shall be deemed to be cash for purposes Tangible Assets of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset Dispositionsuch acquired Person.
Appears in 1 contract
Mergers, Consolidations, Sales. (a) Make Not, and not permit any other Loan Party to, make any Acquisition; nor merge or consolidate or amalgamate with any other Person or take any other action having a similar effect, nor enter into any joint venture or similar arrangement with any other Person, except (i) any Acquisition by the Company or any Guarantor where (collectively, “Permitted Acquisitions”):
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar to those engaged in by the Loan Parties on the Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
(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) shall not exceed $5,000,00010,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,00025,000,000;
(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 11.13;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(G) reasonably prior with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds $5,000,000, within 10 Business Days 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, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(H) with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds $5,000,000, not less than ten Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(I) with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds $5,000,000, the Administrative Agent and Required Lenders shall have approved (such approval not to be unreasonably withheld) the Company’s computation of pro forma EBITDA;EBITDA after giving effect to such Acquisition; and
(J) with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds $5,000,000, consents have been obtained in favor of the Administrative Collateral 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 Collateral Agent and the Lenders have been delivered; and
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be maybe otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l11.10(1).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); ) provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 12% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if of Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving LoanLoans, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Collateral Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset Disposition.
Appears in 1 contract
Mergers, Consolidations, Sales. (a) Make Not, and not permit any other Loan Party to, make any Acquisition; , nor merge or consolidate or amalgamate with any other Person Person, nor dissolve or liquidate, nor take any other action having a similar effecteffect to any of the foregoing, nor enter into any joint venture or similar arrangement with any other Person, except (i) any Acquisition by the Company or any Guarantor where (collectively, “Permitted Acquisitions”):
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar similar, or reasonably related, complementary or ancillary, to those engaged in by the Loan Parties on the Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
(C) the aggregate consideration Company shall have delivered to the Administrative Agent a certificate, in form and substance satisfactory to the Administrative Agent, demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Total Debt to EBITDA Ratio is less than (x) 3.25 to 1.0, for any Acquisition to be paid by the Loan Parties consummated before September 30, 2016 or (including y) 3.00 to 1.0, for any Debt assumed or issued in connection therewith, the amount thereof Acquisition to be calculated in accordance with GAAP) in connection with such Acquisition (consummated on or any series of related Acquisitions) shall not exceed $5,000,000after September 30, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,0002016;
(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 11.13;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(FE) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired businessAcquisition, the Revolving Loan Availability shall equal or exceed $7,000,00015,000,000;
(GF) reasonably prior with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds $20,000,000, within 20 Business Days after the consummation 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, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;; and
(HG) with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds $20,000,000, not less than ten (10) Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA on a Pro Forma Basis relating thereto;
(I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA;
(J) 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
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset Disposition.
Appears in 1 contract
Mergers, Consolidations, Sales. (a) Make Not, and not permit any other Loan Party to, make any Acquisition; nor merge or consolidate or amalgamate with any other Person or take any other action having a similar effect, nor enter into any joint venture or similar arrangement with any other Person, except (i) any Acquisition by the Company or any Guarantor where (collectively, “"Permitted Acquisitions”"):
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar to those engaged in by the Loan Parties on the Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
(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) shall not exceed $5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(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 11.13;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(G) reasonably prior to such Acquisition, the Administrative Paying 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 Paying Agent may require to evidence the termination of Liens on the assets or business to be acquired, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(H) not less than ten Business Days prior to such Acquisition, the Administrative Paying 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s 's calculation of pro forma EBITDA relating thereto;
(I) the Administrative Paying Agent and Required Lenders shall have approved the Company’s 's computation of pro forma EBITDA;; and
(J) consents have been obtained in favor of the Administrative Collateral 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 Collateral Agent and the Lenders have been delivered; and
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be maybe otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l11.10(1).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “"Asset Disposition”); ") provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 12% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if of Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving LoanLoans, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s 's certificate delivered to the Administrative Paying Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s 's or such Subsidiary’s 's most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Collateral Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset Disposition.
Appears in 1 contract
Mergers, Consolidations, Sales. (a) Make Not, and not permit any other Loan Party to, make any Acquisition; , nor merge or consolidate or amalgamate with any other Person Person, nor dissolve or liquidate, nor take any other action having a similar effecteffect to any of the foregoing, nor enter into any joint venture or similar arrangement with any other Person, except (i) any Acquisition by the Company or any Guarantor where (collectively, “Permitted Acquisitions”):
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar similar, or reasonably related, complementary or ancillary, to those engaged in by the Loan Parties on the Original Closing Date;
(B) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
(C) the aggregate consideration Company shall have delivered to the Administrative Agent a certificate, in form and substance satisfactory to the Administrative Agent, demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Total Debt to EBITDA Ratio is at least 0.25 to 1.0 less than the Total Debt to EBITDA Ratio required to be paid maintained by Section 11.13.2 as of the Loan Parties (including any Debt assumed most recent Fiscal Quarter end for which the Company was required to deliver financial statements pursuant to Section 10.1.1 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) shall not exceed $5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,00010.1.2;
(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 11.13;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(FE) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired businessAcquisition, the Revolving Loan Availability shall equal or exceed $7,000,00015,000,000;
(GF) reasonably prior with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds $20,000,000, within twenty (20) Business Days after the consummation 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, provided that provided, that, the Lien termination may occur simultaneously with the closing of such Acquisition;; and
(HG) with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds $20,000,000, not less than ten (10) Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA on a Pro Forma Basis relating thereto;
(I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA;
(J) 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
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not permit any of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset Disposition.
Appears in 1 contract
Samples: Credit Agreement (SP Plus Corp)
Mergers, Consolidations, Sales. (a) Make Neither the Borrower nor any Acquisition; nor merge of ------------------------------ its Subsidiaries shall be a party to any merger, consolidation or consolidate exchange of stock, or amalgamate with purchase or otherwise acquire all or substantially all of the assets or stock of any class of, or any partnership, membership, or joint venture interest in, any other Person except as otherwise provided in (S)11.3 or take this (S)11.4, or sell, transfer, convey or lease any other action having a similar effect, nor enter into any joint venture assets or similar arrangement with any other Person, group of assets (except (i) any Acquisition by the Company or any Guarantor where (collectively, “Permitted Acquisitions”):
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar to those engaged in by the Loan Parties on the Closing Date;
(B) immediately before sales of equipment and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
(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) shall not exceed $5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(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 11.13;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(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 require to evidence the termination of Liens on the assets or business to be acquired, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(H) not less than ten Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA;
(J) 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
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales (ii) any other sale or sale/leaseback of material or equipment no longer useful in assets by the business, and shall Borrower not permit or suffer any Subsidiary to do any of the foregoing (exceed an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value of five percent (disregarding any write-downs of such book value other than ordinary depreciation and amortization5%) of Consolidated Total Assets immediately prior to such sale or sale and leaseback). The Borrower and its Subsidiaries may purchase or otherwise acquire all or substantially all of the businessassets or stock of, assetsor partnership, rightsmembership, revenues and property disposed or joint venture interest in, or (in the case of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% any Subsidiary of the Total Assets at Borrower) may merge with any Person, provided that (a) in the event that the cash paid in connection with any such time acquisition or series of related acquisitions exceeds $200,000,000, (including deferred payments and ifthe amount of all Indebtedness, immediately before and after including, without limitation, any notes, or puts payable in cash with respect to any securities issued as consideration for any such transaction, or assumed in connection therewith), the Agents and the Lenders shall have been provided with pro forma financial statements reasonably satisfactory to the Managing Agent demonstrating that the Borrower is in current compliance with and, after giving effect to the proposed transaction (including any borrowings made or to be made in connection therewith), will continue to be in compliance through the Maturity Date with, all of the covenants in (S)11.1 and (S)12 hereof; (b) no Unmatured Event if Default or Event of Default exists, and the proposed transaction will not otherwise create a Default or an Event of Default hereunder; (c) the business to be acquired involves substantially the same lines, related lines, or supporting lines of business as the Borrower or its Subsidiaries are currently engaged in; (d) in the case of a merger, the surviving entity shall existbe a wholly-owned Subsidiary of the Borrower; (e) a copy of the purchase agreement, together with all financial statements received by the Borrower or its Subsidiaries for any Subsidiary to be acquired or created shall have been furnished to the Agents and the Lenders; and (f) the acquisition shall have been approved by the board of directors of the corporation to be acquired prior to the commencement of (i) any tender offer for, or the acquisition by the Borrower or any of its Subsidiaries of, any shares of the corporation to be acquired, or (ii) sales any proxy solicitation of equipment as the shareholders of the corporation to which proceeds are used within 180 days to purchase equipment be acquired. The Subsidiaries of at least equivalent value to those sold the Borrower may merge, consolidate or combine with and ifinto one another, immediately before provided that the resulting entity is a Subsidiary of the Borrower and after such transaction, no Unmatured Event of Default or Event of Default shall existexists or would exist after giving effect to such merger. The Lenders are aware of the announced tender offer and takeover scheme by a Subsidiary of the Borrower for the ordinary shares (including the American Depositary Shares) of Memtec Limited (the "Memtec Acquisition"). Notwithstanding any other provisions of this Agreement, the Lenders hereby expressly consent to the Memtec Acquisition and agree that the Memtec Acquisition is a permitted transaction hereunder and that Loans made hereunder may be used for the purpose of lending to a Subsidiary of the Borrower for the purpose of purchasing ordinary shares and American Depositary Shares of Memtec Limited. Furthermore, the parties agree that without the further consent of the Lenders, (iiia) sales as the structure of the Memtec Acquisition may be modified (including without limitation the scheme of arrangement) and (b) the terms of the Memtec Acquisition may be modified, including by increasing the price or changing the form of consideration from cash to which proceeds are used to make optional repayments on the Revolving Loanstock or a combination of cash and stock, provided that updated pro ------------- forma financial statements reflecting such prepayments on changes are provided to the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount Lenders and provided further that (i) no Default or Event of such payments, Default has occurred and ---------------- is continuing under (ivS)15.1(a) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (vb), or under (S)15.1(c) transfers of assets pursuant as it relates to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i)S)12, (ii) no other Default or Event of Default has occurred and is continuing and with respect to which the Lenders have notified the Borrower that the Memtec Acquisition is no longer permitted, and (iii) the Company shall not, and shall not permit any no Default or Event of its Subsidiaries to, consummate an Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value (as determined Default will be caused by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset DispositionMemtec Acquisition.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (United States Filter Corp)
Mergers, Consolidations, Sales. (a) Make Not, and not permit any Acquisition; nor merge Subsidiary to, be a party to any merger or consolidate consolidation, or amalgamate with purchase or otherwise acquire all or substantially all of the assets or any other Person stock of any class of, or take any other action having a similar effect, nor enter into any partnership or joint venture or similar arrangement with interest in, any other Person, or, except in the ordinary course of its business, sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for: (ia) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Subsidiary into the Company or into, with or to any other Subsidiary; (b) any such purchase or other acquisition by the Company or any Subsidiary of the assets or stock of any Subsidiary; (c) any Acquisition by the Company or any Guarantor where Subsidiary if (collectively, “Permitted Acquisitions”):
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar to those engaged in by the Loan Parties on the Closing Date;
(B1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist;
, (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) shall not exceed $5,000,000, and all such Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(D2) 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;
9.6, (E3) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition and all auto manufacturers doing business with such Person have consented to such Acquisition (provided that the auto manufacturers doing business with the acquired Person 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 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 and other similar consideration) within 180 days if such auto 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), (F4) after giving effect to such Acquisition, at least 20% of the total consideration (including cash and noncash purchase price, liabilities assumed, deferred purchase price, noncompetition payments and the like) paid by the Company in respect of all Acquisitions consummated after June 28, 2000 at any time has been paid otherwise than by means of any Debt incurred by the Company or any Subsidiary (provided that, for purposes of this clause (4) only, "Debt" shall not include Acquisition Loans and Revolving Loans to the extent that the aggregate principal amount of all Acquisition Loans and Revolving Loans is less than or equal to $200,000,000) and (5) prior to and after giving effect such Acquisition, the Chief Financial Officer of the Company has delivered a certificate to the working capital needs Agent confirming that the conditions set forth in clauses (1) - (4) above will be (in the case of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(G) reasonably a certificate delivered 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, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(H) not less than ten Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA;
(J) 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
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (iia certificate delivered after such Acquisition) met; and (iiid) sales and dispositions ("Dispositions") of assets (including the Company shall not, and shall not permit any stock of its Subsidiaries to, consummate an Asset Disposition unless (ASubsidiaries) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition for at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution of the Board of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets and (B) at least 75% of the consideration therefore received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s ) so long as the net book value of all assets sold or such Subsidiary’s most recent balance sheet), otherwise disposed of the Company or in any Subsidiary that are assumed by the transferee Fiscal Year does not exceed $50,000,000 (exclusive of any such assets such that Disposition the Company net cash proceeds of which are used within 180 days to purchase another asset performing the same or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by a similar function as the Company or any such Subsidiary from such transferee that are converted by the Company or such Subsidiary into cash (to the extent of the cash receivedasset disposed of), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a first priority security interest in any non-cash consideration for any Asset Disposition.
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Mergers, Consolidations, Sales. No Borrower will be party to any merger or consolidation, unless (a) Make any Acquisition; nor merge or consolidate or amalgamate with any other Person or take any other action having a similar effect, nor enter into any joint venture or similar arrangement with any other Person, except either (i) any Acquisition by such Borrower (or, in the Company case of a merger or any Guarantor where consolidation between a Borrower and another Borrower, either of such Borrowers) is the Person surviving such transaction or (collectivelyii) if such Borrower is not the Person surviving such transaction, “Permitted Acquisitions”):
(A) such Borrower shall have notified the business or division acquired are for useLenders in writing of the identity of the surviving Person and the Required Lenders shall not have objected thereto in writing within 15 Business Days of such notice, or the Person acquired is engaged, in businesses similar to those engaged in by the Loan Parties on the Closing Date;
(B) immediately before and after giving effect if the Borrower that is a party to such Acquisitiontransaction is organized under the laws of the United States or any State thereof or the District of Columbia, no Event the Person surviving such transaction shall be organized under the laws of Default the United States or Unmatured Event any State thereof or the District of Default shall exist;
Columbia, (C) if the aggregate consideration Borrower that is party to be paid by such transaction is organized under the Loan Parties (including any Debt assumed laws of Canada or issued in connection therewithone of its provinces, the amount thereof to Person surviving such transaction shall be calculated in accordance with GAAPorganized under the laws of Canada or one of its provinces, (D) in connection with the Person surviving such Acquisition transaction (or any series of related AcquisitionsI) shall not exceed $5,000,000have expressly assumed all of the rights and obligations of such Borrower under the Financing Documents in a manner satisfactory to the applicable Administrative Agent and (II) made representations and delivered opinions of counsel (unless the applicable Administrative Agent shall have indicated that no such opinion of counsel is required), in each case in form and all substance satisfactory to the applicable Administrative Agent as to the valid existence of such Acquisitions in any Fiscal Year shall not exceed $15,000,000;
Person, as to the power and authorization of such Person to assume such rights and obligations and as to the validity and binding nature of the Financing Documents on such Person and (Db) 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;
(E) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such Acquisition;
(F) after giving effect to any Acquisition and after giving effect to the working capital needs of the acquired business, the Revolving Loan Availability shall equal or exceed $7,000,000;
(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 require to evidence the termination of Liens on the assets or business to be acquired, provided that the Lien termination may occur simultaneously with the closing of such Acquisition;
(H) not less than ten Business Days prior to such Acquisition, 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 material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(I) the Administrative Agent and Required Lenders shall have approved the Company’s computation of pro forma EBITDA;
(J) 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
(K) the provisions of Section 10.10 have been satisfied; and (ii) as may be otherwise permitted pursuant to Sections 11.6, 11.10(b) and 11.10(l).
(b) Sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business, and shall not permit or suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”); provided, however, that this Section 11.4(b) shall not prohibit any sale, lease, license, transfer, assignment or other disposition otherwise permitted pursuant to Section 11.6 or if (i) the aggregate book value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date of this Agreement (other than in reliance on clauses (ii) and (iii) below) shall be less than 1% of the Total Assets at such time and if, immediately before and after such transaction, no Unmatured Event if Default or Event of Default shall exist, (ii) sales of equipment as to which proceeds are used within 180 days to purchase equipment of at least equivalent value to those sold have occurred and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist, (iii) sales as to which proceeds are used to make optional repayments on the Revolving Loan, provided that such prepayments on the Revolving Loans shall also permanently reduce the Revolving Commitment by the amount of such payments, (iv) investments which consist of transfers of assets instead of cash and which are permitted by Section 11.10 or (v) transfers of assets pursuant to a loan or advance permitted pursuant to Section 11.10; provided, however, in the case of any of the foregoing permitted sales, leases, licenses, transfers, assignments or other dispositions described in clauses (i), (ii) and (iii) the Company shall not, and shall not be continuing. No Borrower will permit any of its Subsidiaries toto be a party to any merger or consolidation, consummate an Asset Disposition unless (AAA) the Company Person surviving such transaction is such Borrower or a Subsidiary of the Company, (BB) immediately after giving effect to such transaction, no Default shall have occurred and be continuing, (CC) if the Subsidiary of a Borrower that is party to such transaction is a Guarantor, the Person surviving such transaction shall be a Borrower or a Guarantor, (DD) if the Subsidiary of a Borrower that is a party to such transaction is organized under the laws of the United States or any State thereof or the SubsidiaryDistrict of Columbia, as the case may be) receives consideration at Person surviving such transaction shall be organized under the time of such Asset Disposition at least equal to the fair market value (as determined by the Board of Directors of such Person and evidenced by a resolution laws of the Board United States or any State thereof or the District of Directors of such Person set forth in an officer’s certificate delivered to the Administrative Agent) of the assets Columbia, and (BEE) at least 75% if the Subsidiary of a Borrower that is party to such transaction is organized under the consideration therefore received by laws of Canada or one of its provinces, the Company Person surviving such transaction shall be organized under the laws of Canada or one of its provinces (provided that if such Subsidiary is a Canadian Credit Party, its guarantee under the applicable Security Document shall not become void, unenforceable or otherwise limited by financial assistance or other applicable provisions of corporate law). The Borrowers will not, and will not permit any of their Subsidiaries to, except in the form normal course of cash; provided that their business, sell (other than in connection with a sale-leaseback transaction), transfer, convey, exchange, or lease all or any part of their assets if the amount sum of (x) any liabilities (as shown on the Company’s or book value of such Subsidiary’s most recent balance sheet)assets, of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and plus (y) any securitiesthe book value of all other assets sold, notes transferred, conveyed, exchanged or other obligations received leased by the Company Borrowers and their Subsidiaries (other than sales of inventory in the normal course of business) during the previous twelve-month period (such sum, the “Aggregate Transferred Asset Value”), represents (a) for the period from and including the Effective Date through but excluding the second anniversary thereof, 25% or any such Subsidiary from such transferee that are converted by more of Consolidated Shareholders’ Equity at the Company or such Subsidiary into cash end of the immediately preceding month (provided however that, to the extent such Aggregate Transferred Asset Value exceeds 15% of Consolidated Shareholders’ Equity at the end of the cash receivedimmediately preceding month, at least 50% of such excess must be attributable to the sale, transfer, conveyance, exchange or lease of redundant assets), shall be deemed to be cash and (b) for the period from and after the second anniversary of the Effective Date, 15% or more of Consolidated Stockholders’ Equity at the end of the immediately preceding month (it being understood that, for purposes of calculating compliance with this provision clause (b) at any time prior to the third anniversary of the Effective Date, the Aggregate Transferred Asset Value of assets so sold, transferred, conveyed, exchanged or leased during the relevant twelve month period shall equal the lesser of the actual book value of such assets so sold, transferred, conveyed, exchanged or leased during such period and the definition annualized book value of Net Cash Proceedssuch assets so sold, and transferred, conveyed, exchanged or leased since the second anniversary of the Effective Date). The restriction set forth in the immediately preceding sentence shall not restrict or be applicable to (Ci) any Lien granted or incurred with respect to any assets of the Administrative Agent promptly Borrowers or any of their Subsidiaries or (ii) any transfer of assets from any Borrower to a Wholly-Owned Consolidated Subsidiary, or from a Subsidiary of any Borrower to such Borrower or a Wholly-Owned Consolidated Subsidiary. For the avoidance of doubt, any sale, transfer, conveyance, exchange or lease of assets comprising Collateral shall obtain a first priority security interest in any non-cash consideration for any Asset Dispositionbe subject to Section 5(d) of the U.S. Security Agreement or Section 5(d) of the Canadian Security Agreement, as applicable.
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