Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or stock of any Domestic Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) 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 9.6, (3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (f) sales and dispositions (“Dispositions”) of assets (including the Capital Stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired by the Company or any of its Subsidiaries other than in connection with the Hertz Acquisition.
Appears in 1 contract
Samples: Fourth Amended and Restated Credit Agreement (Penske Automotive Group, Inc.)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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: for (a) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Wholly-Owned Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Wholly-Owned Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Wholly-Owned Subsidiary of the assets or stock of any Domestic Wholly-Owned Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Wholly-Owned Subsidiary if where (1) the assets acquired (in the case of an asset purchase) are for use, or the Person acquired (in the case of any other Acquisition) is engaged, solely in the businesses permitted under Section 10.5(a); (2) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist; (3) the aggregate consideration paid (or to be paid) by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with each Acquisition (2or any series of related Acquisitions) (w) of the assets or stock of any Person engaged in any Gas Related Business is less than $25,000,000 and (x) of the assets or stock of any Person that is engaged in any Non-Gas Related Business is less than $10,000,000 and the aggregate consideration paid (or to be paid) by the Company and its Subsidiaries, determined as aforesaid, for all Acquisitions conducted from and after the Closing Date (y) of the assets or stock of any Person that is engaged in any Gas Related Business is less than $50,000,000 and (z) of the assets or stock of any Person that is engaged in any Non-Gas Related Business is less than $20,000,000; (4) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, 10.6; and (35) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) ; and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (fd) sales and dispositions (“Dispositions”) of assets (including the Capital Stock stock of Subsidiaries) for at least fair market value (as reasonably determined by the Board of Directors of the Company) ), so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive 5% of any Disposition the net cash proceeds book value of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) consolidated assets of the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent as of the Agent and each Lenderlast day of the preceding Fiscal Year, no rental vehicle franchises may be acquired by except to the extent the proceeds of such sales or dispositions are used to purchase comparable replacement assets within 180 days following the date of such sale or disposition (or in the event within 180 days following the date of such sale or disposition the Company has entered into a binding purchase order or any of its Subsidiaries other than in connection with the Hertz Acquisitioncontract for such purchase, within 360 days).
Appears in 1 contract
Samples: Credit Agreement (Semco Energy Inc)
Mergers, Consolidations, Sales. NotExcept for Permitted Acquisitions, not, and not permit any Subsidiary other Loan Party to, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock Capital Securities of any class of, or any membership or partnership or joint venture interest in, any other Person, or, except in the ordinary course of its business, (b) sell, transfer, convey or lease all or any substantial part of its assetsassets 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: for (ai) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Wholly-Owned Subsidiary into the Company (provided, that in the case of any merger Co-Borrowers or consolidation, the Company is the survivor) or into, with or to into any other Domestic domestic Wholly-Owned Subsidiary; , (bii) any such purchase or other acquisition by the Company Co-Borrowers or any Domestic domestic Wholly-Owned Subsidiary of the assets or stock Capital Securities of any Domestic Wholly-Owned Subsidiary; , (ciii) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to Loan Party into any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) 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 9.6, (3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditionalCo-Borrower, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (fiv) sales and dispositions (“Dispositions”) of assets (including the Capital Stock Securities of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the CompanyCo-Borrowers) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive 10% of any Disposition the net cash book value of the consolidated assets of the Loan Parties as of the last day of the preceding Fiscal Year. The Lenders agrees that the security interest granted to the Lenders in any railroad rolling stock shall be automatically released as described in Section 9-320 of the UCC upon sale by the Co-Borrowers of such railroad rolling stock to a buyer in the ordinary course of business; provided, however, the such security interest shall attach to the proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of)such sale; and (g) provided, further, that the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged foregoing shall not affect the Lenders’ security interest in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent any security interest of the Co-Borrowers in the property of such buyers to the extent that such security interest secures the purchase price for such railroad rolling stock. Subject to the terms of this Section 11.4, if the Co-Borrowers shall request in writing that the Administrative Agent evidence the release referred to in this Section 11.4 with respect to specific railroad cars, the Administrative Agent shall promptly execute and each Lenderdeliver a partial release with respect to such railroad cars substantially in the form of Exhibit A to the Guaranty and Collateral Agreement. In the event that any Loan Party is granted a security interest in any railroad rolling stock or other property as collateral security for the purchase price of such railroad rolling stock or other property, no rental vehicle franchises may be acquired such Loan Party agrees that it shall execute and deliver all documents requested by the Company or any Administrative Agent in order to reflect and perfect the collateral assignment of its Subsidiaries other than in connection with the Hertz Acquisitionforegoing security interest of such Loan Party to the Administrative Agent, for the benefit of the Lenders.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or stock of any Domestic Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) 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 9.6, (3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — - (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (f) sales and dispositions (“Dispositions”) Dispositions of assets (including the Capital Stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired by the Company or any of its Subsidiaries other than in connection with the Hertz Acquisition.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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: for (a) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Wholly-Owned Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Wholly-Owned Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Wholly-Owned Subsidiary of the assets or stock of any Domestic Wholly-Owned Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Wholly-Owned Subsidiary if where (1) the Company has provided the Banks with all historic financial information and due diligence with respect to the Person acquired as requested by the Agent, (2) the assets acquired (in the case of an asset purchase) are for use, or the Person acquired (in the case of any other Acquisition) is engaged, solely in the business of acquiring, developing or marketing software products; (3) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist; (4) the consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (2or any series of related Acquisitions) is less than $5,000,000 and, together with all other Acquisitions made in accordance with this Section 10.11, is less than $15,000,000 in the aggregate; (5) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, 10.6; (36) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition Acquisition; (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if 7) 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, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (f) sales and dispositions (“Dispositions”) of assets (including the Capital Stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired by the Company or any one of its Subsidiaries other than in connection with the Hertz Acquisition.Wholly-Owned
Appears in 1 contract
Samples: Credit Agreement (Asg Sub Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or stock of any Domestic Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) 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 9.6, (3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — - (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; and (f) sales and dispositions (“Dispositions”) of assets (including the Capital Stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into into, or make additional Investments into, joint ventures permitted by Section 9.19 9.19(j) which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired by the Company or any of its Subsidiaries other than in connection with the Hertz Acquisition.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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: for (a) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Wholly-Owned Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Wholly-Owned Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Wholly-Owned Subsidiary of the assets or stock of any Domestic Wholly-Owned Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Wholly-Owned Subsidiary if where (1) the assets acquired (in the case of an asset purchase) are for use, or the Person acquired (in the case of any other Acquisition) is engaged, solely in the security systems and/or fire alarm businesses; (2) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist; (3) the consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (2or any series of related Acquisitions) and any other Acquisitions consummated during the same Fiscal Year is less than $600,000, in aggregate; (4) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, 10.6; (35) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition Acquisition; (provided that such Manufacturers need not have consented to such Acquisition at 6) 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 EBITDA in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer respect of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — (3) above will be business (in the case of a certificate delivered prior to such Acquisitionan asset purchase) or have been Person (in the case of a certificate delivered after such any other Acquisition) metacquired is not less than zero; and (f7) the Company provides ten days prior written notice of such Acquisition to the Agent; and (d) sales and dispositions (“Dispositions”) of assets (including the Capital Stock stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive 10% of any Disposition the net cash proceeds book value of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) consolidated assets of the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent as of the Agent and each Lender, no rental vehicle franchises may be acquired by last day of the Company or any of its Subsidiaries other than in connection with the Hertz Acquisitionpreceding Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Compudyne Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Wholly-Owned Subsidiary into the Company (provided, provided that in the case of any a merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Wholly-Owned Subsidiary that is a Collateral Subsidiary (provided, that in the case of any merger or consolidation involving a Collateral Subsidiary, a Collateral Subsidiary must be the survivor) ; (b) any such purchase or other acquisition by the Company or any Domestic Wholly-Owned Subsidiary that is a Collateral Subsidiary of the assets or stock of any Domestic Wholly-Owned Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Wholly-Owned Subsidiary that is a Collateral Subsidiary if (1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) 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 9.6, (3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers doing business with such Person have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional(4) in the case of an Acquisition of equity interests of an entity, and which option must such Acquisition shall be exercised by of 100% of the equity interests of such entity except that in the case of a Majority Acquisition, such Acquisition shall be of at least 80% of the equity interests of such entity, (5) the Company shall have obtained either (i) a written approval for a new Dealer Franchise Agreement between the entity to be acquired in such Acquisition and the Manufacturer on substantially the same terms as the Dealer Franchise Agreement entered into between the Manufacturer and the entity to be acquired in such Acquisition or (ii) any consent required from a Manufacturer for the applicable Subsidiary within continued enforceability and validity of such period if such consents are not Dealer Franchise Agreement after the completion of a Acquisition shall have been obtained) and , (46) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — - (35) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (fd) sales of Equipment to Lithia Financial, and sales of real estate to Lithia Real Estate, in each case in the ordinary course of business in connection with an Acquisition permitted hereunder by the Subsidiary acquired in such Acquisition (or, in the case of an acquisition of assets, by the Subsidiary acquiring such assets) for at least fair market value (as determined in good faith by the Board of Directors of the Company) and where all the consideration is cash; and (e) sales and dispositions (“Dispositions”) of assets (including the Capital Stock stock of Subsidiaries) for at least fair market value (as determined in good faith by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive 10% of any Disposition the net cash proceeds book value of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) consolidated assets of the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent as of the Agent and each Lender, no rental vehicle franchises may be acquired by last day of the Company or any of its Subsidiaries other than in connection with the Hertz Acquisitionpreceding Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Lithia Motors Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, Not be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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: for (a) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Wholly-Owned Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Wholly-Owned Subsidiary; provided, that the Company shall be the surviving entity after giving effect to any merger or consolidation involving the Company; (b) any such purchase or other acquisition by the Company or any Domestic Wholly-Owned Subsidiary of the assets or stock of any Domestic Wholly-Owned Subsidiary; (c) any such mergerAcquisition, consolidation, sale, transfer, conveyance, lease joint venture or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition partnership Investment by the Company or any Domestic Wholly-Owned Subsidiary if where (1) the assets acquired (in the case of an asset purchase) are for use, or the Person acquired (or the Person in which an equity interest has been acquired) (in the case of any other Acquisition) is engaged, in a business relating to digital map information or electronic navigation and related content, applications and services, and businesses reasonably complementary thereto; (2) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, ; (23) immediately after giving effect to such Acquisition, the Company is Guarantor and its Subsidiaries are in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, 12.1.11; (34) in the case of the Acquisition of any Person (or an equity interest in a Person), the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) ; and (45) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — (3) above will be (in the case of any Acquisition which is a certificate delivered prior merger or consolidation, the Company shall be the surviving entity after giving effect to such Acquisition) any merger or have been consolidation involving the Company and (in the case of a certificate delivered after such Acquisition) met; (fd) sales and dispositions (“Dispositions”) of assets (including the Capital Stock stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the CompanyGuarantor) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive 10% of any Disposition the net cash proceeds book value of which are used within 180 days to purchase another asset performing the same or a similar function as consolidated assets of the asset disposed of); and (g) the Company Guarantor and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent as of the Agent and each Lender, no rental vehicle franchises may be acquired by last day of the Company or any of its Subsidiaries other than in connection with the Hertz Acquisitionpreceding Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Navteq Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Related Party to, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock Capital Securities of any class of, or any membership or partnership or joint venture interest in, any other Person, or, except in the ordinary course of its business, (b) sell, transfer, convey or lease all or any substantial part of its assetsassets 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 receivablesreceivables or (d) consummate any other Acquisition (collectively, “Restricted Transactions”), except for: for (ai) so long as no Event of Default or Unmatured Event of Default exists or would result therefrom, any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic foreign Wholly-Owned Subsidiary into any other foreign Wholly-Owned Subsidiary (but only to the extent that, if either such Subsidiary is a Pledged Subsidiary, the survivor of such merger is a Pledged Subsidiary as to which the Borrowers are in compliance with the provisions of Section 10.10 of this Agreement), or by a Wholly-Owned Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to into any other Domestic domestic Wholly-Owned Subsidiary; (bii) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or stock of any Domestic Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, so long as no Event of Default or Unmatured Event of Default shall exist, (2) immediately after giving effect to such Acquisition, exists or would result therefrom and the Company is Borrowers are in pro forma compliance (as determined on a Pro Forma Basis and as evidenced by a certificate of a Senior Officer of the Company delivered to the Agent and Lenders in advance thereof) with all of the financial ratios and restrictions covenants set forth in Section 9.611.13, both before and after giving effect thereto, sales and dispositions of (A) the Easylink Note and the EasyLink Shares (and any assets received in consideration of any such sale or disposition), (3B) Assets acquired in the case of the Acquisition of any Person, the Board of Directors Acquisitions permitted under part (or similar bodyiii) of this Section provided such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time disposition occurs within 270 days 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, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4C) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (f) sales and dispositions (“Dispositions”) of other assets (including the Capital Stock Securities of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the greater of the fair market value and net book value of all assets sold or otherwise disposed of under this clause (C) in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition 5,000,000 in the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of)aggregate; and (giii) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired any Acquisition by the Company or any of its Subsidiaries other than in connection with the Hertz Acquisition.domestic Wholly-Owned Subsidiary where:
Appears in 1 contract
Samples: Credit Agreement (Ptek Holdings Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or stock of any Domestic Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) 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 9.6, (3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers auto manufacturers doing business with such Person have consented to such Acquisition (provided that such Manufacturers 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, debt assumption payments and other similar consideration) within 180 days if such Manufacturers 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) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have has delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — - (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; and (fd) sales and dispositions (“"Dispositions”") of assets (including the Capital Stock stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired by the Company or any of its Subsidiaries other than in connection with the Hertz Acquisition.as
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or stock of any Domestic Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) 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 9.6, (3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers auto manufacturers doing business with such Person have consented to such Acquisition (provided that such Manufacturers 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, debt assumption payments and other similar consideration) within 180 days if such Manufacturers 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), (4) 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 (45) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have has delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — - (34) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; and (fd) sales and dispositions (“"Dispositions”") of assets (including the Capital Stock stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired by the Company or any of its Subsidiaries other than in connection with the Hertz Acquisition.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock Capital Securities of any class of, or any membership or partnership or joint venture interest in, any other Person, or, except in the ordinary course of its business, (b) sell, transfer, convey or lease all or any substantial part of its assetsassets or Capital Securities (including the sale of Capital Securities of any Subsidiary) except for sales of Inventory in the ordinary course of business; provided, that Xxxxxx Xxxxxxx Enterprises, Inc. shall be permitted to sell all or substantially all of its assets for a sale price of not less than $2,500,000 on substantially the terms and conditions set forth in the Related Agreements, or (c) sell or assign with or without recourse any receivables, except for: for (ai) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Wholly-Owned Subsidiary into the Company (provided, that in the case of any merger Borrower into a Borrower or consolidation, the Company is the survivor) or into, with or to into any other Domestic Subsidiarydomestic Wholly-Owned Subsidiary of any Borrower; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or stock of any Domestic Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (dii) any such purchase or other acquisition by any Foreign Borrower or any Wholly-Owned Subsidiary of any Borrower of the assets or stock Capital Securities of any Foreign SubsidiaryWholly-Owned Subsidiary of such Borrower; and (eiii) any Acquisition by the Company any Borrower or any Domestic Wholly-Owned Subsidiary if of any Borrower where (1A) the assets acquired (in the case of an asset purchase) are for use, or the Person acquired (in the case of any other Acquisition) is engaged, solely in the businesses engaged in by such Borrower or any Wholly-Owned Subsidiary of such Borrower on the date hereof; (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 such Borrower and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such Acquisition (2or any series of related Acquisitions) is less than $2,000,000 in the aggregate for all such Acquisitions in any Fiscal Year; (D) immediately after giving effect to such Acquisition, the Company is Borrowers are in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, 11.14; (3E) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition Acquisition; (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrowF) 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, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented reasonably prior to such Acquisition, which option is otherwise unconditionalthe Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and which option must agreement to be exercised by executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Company Administrative Agent may require to evidence the termination of Liens on the assets or the applicable Subsidiary within such period if such consents are business to be acquired; (G) not obtained) and (4) less than ten Business Days prior to and after such Acquisition, the Chief Financial Officer Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the Company proposed Acquisition, and such Borrower's calculation of pro forma EBITDA relating thereto; (H) the Administrative Agent and Required Lenders shall have delivered a certificate approved the Borrowers' computation of pro forma EBITDA; (I) consents have been obtained in favor of the Administrative Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Loan Parties and (if delivered to the Loan Party) the selling party in favor of the Administrative Agent confirming that and the conditions set forth in clauses (1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or Lenders have been (in the case of a certificate delivered after such Acquisition) met; (f) sales and dispositions (“Dispositions”) of assets (including the Capital Stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of)delivered; and (gJ) the Company and its Subsidiaries may enter into joint ventures permitted by provisions of Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired by the Company or any of its Subsidiaries other than in connection with the Hertz Acquisition10.10 have been satisfied.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any membership or partnership or joint venture 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, consolidation, sale, transfer, conveyance, lease or assignment of or by any Domestic Subsidiary into the Company (provided, that in the case of any merger or consolidation, the Company is the survivor) or into, with or to any other Domestic Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary of the assets or stock of any Domestic Subsidiary; (c) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any Foreign Subsidiary into, with or to any other Foreign Subsidiary; (d) any such purchase or other acquisition by any Foreign Subsidiary of the assets or stock of any Foreign Subsidiary; (e) any Acquisition by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) 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 9.6, (3) in the case of the Acquisition of any Person, the Board of Directors (or similar body) of such Person has approved such Acquisition and all requisite Manufacturers have consented to such Acquisition (provided that such Manufacturers need not have consented to such Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the Person acquired in such Acquisition back to the seller thereof for a price in cash at least equal to the total amount of cash consideration paid by the Company or such Subsidiary in such Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or the applicable Subsidiary within such period if such consents are not obtained) and (4) prior to and after such Acquisition, the Chief Financial Officer of the Company shall have delivered a certificate to the Agent confirming that the conditions set forth in clauses (1) — (3) above will be (in the case of a certificate delivered prior to such Acquisition) or have been (in the case of a certificate delivered after such Acquisition) met; (f) sales and dispositions (“Dispositions”) of assets (including the Capital Stock of Subsidiaries) for at least fair market value (as determined by the Board of Directors of the Company) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year does not exceed $50,000,000 (exclusive of any Disposition the net cash proceeds of which are used within 180 days to purchase another asset performing the same or a similar function as the asset disposed of); and (g) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18. Notwithstanding the foregoing, without the prior written consent of the Agent and each Lender, no rental vehicle franchises may be acquired by the Company or any of its Subsidiaries other than in connection with the Hertz Acquisition.
Appears in 1 contract
