Common use of Mergers, Consolidations, Sales Clause in Contracts

Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests, or any partnership or joint venture interest in, any other Person or make any Acquisition, in all cases other than: (i) any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, or assignment of or by any Borrower or Subsidiary with and into any Borrower or any Subsidiary so long as (t) no other provision of this Agreement would be violated thereby, (u) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing either before or after giving effect to that transaction, and (z) the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositions.

Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests, or any partnership or joint venture interest in, any other Person or make any Acquisition, in all cases other than: (i) any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, or assignment of or by any Borrower or Subsidiary with and into any Borrower or any Subsidiary so long as (t) no other provision of this Agreement would be violated thereby, (u) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing either before or after giving effect to that transaction, and (z) the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositions, (iv) an IPO by Ultimate Holdings otherwise permitted hereunder, and (v) a SPAC Transaction, so long as such SPAC Transaction is consummated in accordance with Section 3 of the Second Amendment.

Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interestsstock of any class of, or any membership or partnership or joint venture interest in, any other Person Person, or, except in the ordinary course of its business, sell, transfer, convey or make lease all or any Acquisitionsubstantial part of its assets, in all cases other thanor sell or assign with or without recourse any receivables, except for: (ia) any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, lease or assignment of or by any Borrower Domestic Subsidiary into the Company (provided, that in the case of any merger or Subsidiary consolidation, the Company is the survivor) or into, with and into or to any Borrower other Domestic Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary so long as of the assets or stock of any Domestic Subsidiary; (tc) 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 (other than a Foreign Acquisition) by the Company or any Domestic Subsidiary if (1) immediately before and after giving effect to such Acquisition, no other provision Event of this Agreement would be violated therebyDefault or Unmatured Event of Default shall exist, (u2) 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 such transactions with a Borrower, a Borrower shall be the surviving Person, the Board of Directors (vor 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) any Foreign Acquisition by the Company or any Subsidiary if (1) immediately before and after giving effect to such Foreign Acquisition, no Event of Default or Unmatured Event of Default shall exist, (2) immediately after giving effect to such Foreign Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 9.6, (3) in the case of the Foreign Acquisition of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, the Board of Directors (wor similar body) of such Person has approved such Foreign Acquisition and all requisite Manufacturers have consented to such Foreign Acquisition (provided that such Manufacturers need not have consented to such Foreign Acquisition at the time of consummation thereof if the Company or the Subsidiary making such Foreign Acquisition has an irrevocable option, on terms and conditions (including cash escrow) satisfactory to the Agent in its sole discretion, to put the case of any Person acquired in such transactions with Foreign Acquisition back to the seller thereof for a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent price in cash at least 15 days’ prior written notice equal to the total amount of cash consideration paid by the Company or such merger Subsidiary in such Foreign Acquisition (including purchase price, noncompetition payments, earnout payments, debt assumption and other similar consideration) within 180 days if such Manufacturers have not consented to such Foreign Acquisition, which option is otherwise unconditional, and which option must be exercised by the Company or consolidation, the applicable Subsidiary within such period if such consents are not obtained) and (y4) no Default or Event of Default has occurred and is continuing either before or after giving effect to that transactionsuch Foreign Acquisition, and the sum of (zi) the Lenders’ rights in any Collateraltotal consideration (including cash and noncash purchase price, including noncompetition payments, earnout payments, debt assumption and other similar consideration) paid by the existence, perfection Company and priority of any Lien thereon, are not adversely affected by that merger or consolidation, its Domestic Subsidiaries for all Foreign Acquisitions made after the Effective Date plus (ii) Permitted Acquisitions, the aggregate amount of all Foreign Investments made by the Company and its Domestic Subsidiaries after the Effective Date plus (iii) Permitted Asset the aggregate amount of all Restricted Equity Payments made by the Company and its Domestic Subsidiaries to Foreign Persons (other than Restricted Equity Payments made by the Company to its stockholders permitted by clause (ii)(1) of the proviso to the first sentence of Section 9.9) after the Effective Date shall not exceed the Foreign Amount; (g) 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 (h) the Company and its Subsidiaries may enter into joint ventures permitted by Section 9.19 which joint ventures are engaged in businesses permitted by Section 9.18.

Mergers, Consolidations, Sales. Notof Assets and Acquisitions. Merge into or consolidate with any other person, and not or permit any Loan Party other person to merge into or Subsidiary thereof toconsolidate with it, (a) be a party to any merger or consolidation, (b) sell, transfer, lease or otherwise dispose of, convey of (in one transaction or lease in a series of transactions) all or any substantial part of its assets (whether now owned or Equity Interests (including the sale of Equity Interests hereafter acquired) or any Capital Stock of any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section 6.05 shall not prohibit: (a) the purchase and sale of inventory in the ordinary course of business by the Borrower or any Subsidiary; (b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) the merger of any wholly owned Subsidiary into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any wholly owned Subsidiary into or with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (which shall be a Domestic Subsidiary if the non- surviving person shall be a Domestic Subsidiary) or the dissolution or liquidation of a wholly owned Subsidiary, and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary receives any consideration; (c) sell the Acquisition; (d) the acquisition of another person or assign all or a substantial part of its assets if (i) the acquired person is engaged in the same business as the Borrower or another business reasonably related thereto, and (ii) at the time of and after giving effect to such acquisition, no Event of Default or Default has occurred and is continuing, and (iii) after giving effect to such acquisition, the Borrower shall be in compliance, on a pro forma basis, with Sections 6.10, 6.11, 6.12 and 6.13, and (iv) such acquisition is approved by the board of directors of the acquired person prior to the commencement of any tender offer or without recourse the acquisition by the Borrower of any Accountsshares of Capital Stock thereof, and (v) after giving effect to such acquisition, the Borrower controls the dividend policy of the Capital Stock of the acquired person and owns at least 80 percent of the common equity thereof and (vi) (A) on the date of such acquisition and after giving effect thereto the Designated Financial Tests are satisfied on an actual and, unless the Borrower is relying on clause (a)(ii) of the definition of "Designated Financial Tests", pro forma basis, or (dB) purchase or otherwise acquire all or substantially all the consideration used consists solely of Capital Stock of the assets or any Equity InterestsBorrower, or any partnership (C) the aggregate consideration paid after the Closing Date for acquisitions (other than acquisitions meeting the requirements of clause (A) or joint venture interest in(B) above) is not in excess of $10,000,000; provided, however, that the aggregate consideration paid under this clause (d)(otherwise than in the form of Capital Stock of the Borrower) after the Closing Date for the acquisition of persons not incorporated or organized under the laws of the United States of America, any other Person State thereof or make the District of Columbia shall not in any Acquisition, in all cases other than: event exceed $10,000,000 (ithe foregoing collectively defined as "Permitted Other Acquisitions"); (e) any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, or assignment of or the sale by any Borrower or Subsidiary with and into any the Borrower or any Subsidiary so long as of the assets of or Capital Stock in O/E/N India Ltd., WSNS or Nordco Inc.; and (tf) no sales or other provision dispositions by the Borrower or any Subsidiary of this Agreement would assets (other than receivables, except to the extent disposed of incidentally in connection with an asset disposition otherwise permitted hereby), for consideration in an aggregate amount not exceeding $25,000,000; provided, however, that (i) each such disposition shall be violated therebyfor a consideration determined in good faith by the board of directors or senior management of the Borrower to be at least equal to the fair market value (if any) of the asset sold, (uii) the aggregate amount of all non-cash consideration included in the case proceeds of any such transactions with a Borrowerdisposition may not exceed 20 percent of the fair market value of such proceeds (provided that obligations of the type referred to in clause (a) of the definition of "Permitted Investments" shall not be deemed non-cash proceeds if such obligations are promptly sold for cash and the proceeds of such sale are included in the calculation of Net Proceeds from such sale), a Borrower (iii) the aggregate Net Proceeds of all such dispositions under this clause (f) shall be the surviving Personapplied in accordance with Section 2.13(b), and (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (yiv) no Default or Event of Default has shall have occurred and is be continuing either before immediately prior to or after giving effect to that transaction, and (z) the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositionssuch disposition. SECTION 6.06.

Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests, or any partnership or joint venture interest in, any other Person or make any Acquisition, in all cases other than: (i) any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, or assignment of or by any Borrower or Subsidiary with and into any Borrower or any Subsidiary so long as (t) no other provision of this Agreement would be violated thereby, (u) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing either before or after giving effect to that transaction, and (z) the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositions, and (iv) an IPO by Ultimate Holdings otherwise permitted hereunder.

Mergers, Consolidations, Sales. Not, and not permit any other Loan Party or Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity InterestsCapital Securities of any class of, or any partnership or joint venture interest in, any other Person Person, except for Investments otherwise permitted by Section 11.9, (b) sell, transfer, convey or make lease all or substantially all of its assets (including the sale of all or substantially all of the Capital Securities of any Acquisition, in all cases other than: Subsidiary) except (i) for sales of inventory and obsolete equipment in the ordinary course of business or (ii) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing, after giving effect thereto on a pro forma basis, the Company and the other Loan Parties shall be in compliance with a Total Debt to EBITDA Ratio not greater than the applicable ratio set forth in Section 11.12.2 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Computation Period (other than a sale, transfer, conveyance or lease of all or substantially all of the assets of the Loan Parties, taken as a whole) or (c) sell or assign with or without recourse any such receivables, except that the restrictions set forth in clauses (a)-(c) above shall not apply to (i) the Fidelis Acquisition, (ii) any merger, consolidation, sale, transfer, acquisition, conveyance, lease, lease or assignment of or by any Borrower or Subsidiary with and into any Borrower or (A) any Subsidiary so long as into the Company (t) no other provision of this Agreement would be violated thereby, (u) in provided that the case of any such transactions with a Borrower, a Borrower Company shall be the continuing or surviving Personentity), (vB) any Subsidiary into any domestic Subsidiary (provided that if such Subsidiary has provided a guarantee of the Obligations, the continuing or surviving entity shall also provide a guarantee of the Obligations) or (C) any foreign Subsidiary into any other foreign Subsidiary; (iii) any such purchase or other acquisition by the Company or any domestic Subsidiary of the assets or Capital Securities of any Subsidiary and by any foreign Subsidiary of the assets or Capital Securities of any other foreign Subsidiary; (iv) any Loan Party (other than the Company) may liquidate, dissolve or wind-up if the Company determines in good faith that such liquidation or dissolution is in the case best interests of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in Company and is not materially disadvantageous to the case Lenders and no Unmatured Event of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing either before or after giving effect to that transactionwould result therefrom; (v) the discount or sale, in each case without recourse and in the ordinary course of business, of past due receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale or financing of receivables), (vi) Investments made in accordance with Section 11.9, (vii) Liens incurred in compliance with Section 11.2 and (zvii) any Acquisition by the Lenders’ rights in Company or any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositions.Subsidiary where:

Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interests, or any partnership or joint venture interest in, any other Person or make any Acquisition, in all cases other than: (i) any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, or assignment of or by any Borrower or Subsidiary with and into any Borrower or any Subsidiary so long as (t) no other provision of this Agreement would be violated thereby, (u) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ ' prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing either before or after giving effect to that transaction, and (z) the Lenders’ ' rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositions.

Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Significant Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) or, except in the ordinary course of its business, sell, transfer, dispose of, convey or lease all or any substantial part of its assets assets, or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accountsreceivables, except, after receipt of all necessary corporate and governmental or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interestsregulatory approvals, or any partnership or joint venture interest in, any other Person or make any Acquisition, in all cases other than: for (i) any such merger, merger or consolidation, sale, transfer, acquisition, conveyance, lease, lease or assignment of or by any Borrower Wholly-Owned Subsidiary into, with or to the Company or into, with or to any other Wholly-Owned Subsidiary with and into any Borrower such purchase or other acquisition by the Company or any Wholly-Owned Subsidiary so long as (t) no other provision of this Agreement would be violated therebythe assets or stock of any Wholly-Owned Subsidiary, (uii) in the case of any such transactions with sale of assets (other than stock) which comprise all or any part of its interest in a Borrowernuclear power generating plant (whether completed or under construction), a Borrower shall be or which comprise the surviving Person, gas business and gas properties of the Company and (viii) in the case of any such transactions merger or consolidation of the Company or any Significant Subsidiary into, with or to Northeast and/or a Domestic SubsidiaryWholly-Owned Subsidiary of Northeast if, a Domestic Subsidiary shall be the surviving Personbut only if, (w) in the case of a merger or consolidation of any Significant Subsidiary, Tangible Net Worth immediately following, and giving effect to, such transactions with a Loan Party, a Loan Party merger or consolidation shall be the surviving Personequal or exceed Tangible Net Worth immediately prior thereto, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of before and after giving effect to any such merger or consolidation, no Event of Default or Default shall have occurred and be continuing, (y) no Default in the case of a merger or Event consolidation of Default has occurred and is continuing either before the Company, the successor or after giving effect surviving corporation, if not the Company, shall have assumed or succeeded to that transaction, all of the liabilities of the Company (including the liabilities of the Company under this Agreement) and (z) the Lenders’ rights Bank shall have received the favorable written opinion of Day, Berry & Howard, or other counsel to the Company sxxxxxactxxx xx the Bank, to the effect of clause (y) of this Section 6(e)(iii). Notwithstanding the foregoing, the Company may sell or assign, with or without recourse, receivables (not constituting all or any substantial part of its assets), provided, that, in any Collateralthe reasonable opinion of the Bank, including such sale or assignment of receivables will not materially adversely affect the existence, perfection and priority financial condition of any Lien thereon, are not adversely affected by that merger the Company or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositionsits ability to perform its obligations hereunder or under the Related Documents to which it is a party.

Mergers, Consolidations, Sales. Not, and not permit any Loan Party or Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase or otherwise acquire all or substantially all of the assets or any Equity Interestsstock of any class of, or any membership or partnership or joint venture interest in, any other Person or make any AcquisitionPerson, in all cases other thanexcept for: (ia) any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, lease or assignment of or by any Borrower Domestic Subsidiary into the Company (provided, that in the case of any merger or Subsidiary consolidation, the Company is the survivor) or into, with and into or to any Borrower other Domestic Subsidiary; (b) any such purchase or other acquisition by the Company or any Domestic Subsidiary so long as of the assets or stock of any Domestic Subsidiary; (tc) 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 other provision Event of this Agreement would be violated therebyDefault or Unmatured Event of Default shall exist, (u2) 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 such transactions with a Borrower, a Borrower shall be the surviving Person, the Board of Directors (vor 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 any a certificate delivered prior to such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, Acquisition) or have been (w) in the case of any a certificate delivered after such transactions with a Loan Party, a Loan Party shall be the surviving Person, (xAcquisition) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (y) no Default or Event of Default has occurred and is continuing either before or after giving effect to that transaction, met; and (zf) the Lenders’ rights Company and its Subsidiaries may enter into, or make additional Investments into, joint ventures permitted by Section 9.19(j) which joint ventures are engaged in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected businesses permitted by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset DispositionsSection 9.18.

Mergers, Consolidations, Sales. Notof Assets and Acquisitions. Merge into or consolidate with any other person, and not or permit any Loan Party other person to merge into or Subsidiary thereof toconsolidate with it, (a) be a party to any merger or consolidation, (b) sell, transfer, lease or otherwise dispose of, convey of (in one transaction or lease in a series of transactions) all or any substantial part of its assets (whether now owned or Equity Interests hereafter acquired) or any Capital Stock of the Borrower or any other Subsidiary, or purchase, lease or otherwise acquire (including in one transaction or a series of transactions) all or any substantial part of the assets of any other person, except that this Section 6.05 shall not prohibit: (a) the purchase and sale of Equity Interests inventory in the ordinary course of business by the Borrower or any other Subsidiary; (b) if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) the merger of any wholly owned Subsidiary into the Borrower in a transaction in which the Borrower is the surviving corporation and (ii) the merger or consolidation of any wholly owned Subsidiary into or with any other wholly owned Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary (which shall be a Domestic Subsidiary if the non- surviving person shall be a Domestic Subsidiary) or the dissolution or liquidation of a wholly owned Subsidiary, and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a wholly owned Subsidiary receives any consideration; (c) sell the acquisition of another person or assign all or a substantial part of its assets if (i) the acquired person is engaged in the same business as the Borrower or another business reasonably related thereto, and (ii) at the time of and after giving effect to such acquisition, no Event of Default or Default has occurred and is continuing, and (iii) after giving effect to such acquisition, the Borrower shall be in compliance, on a pro forma basis, with Sections 6.10, 6.11 and 6.12, and (iv) such acquisition is approved by the board of directors of the acquired person prior to the commencement of any tender offer or without recourse the acquisition by the Borrower of any Accountsshares of Capital Stock thereof, and (v) after giving effect to such acquisition, the Borrower controls the dividend policy of the Capital Stock of the acquired person and owns at least 80 percent of the common equity thereof and (vi) (A) on the date of such acquisition and after giving effect thereto the Designated Financial Tests are satisfied on an actual and, unless the Borrower is relying on clause (a)(ii) of the definition of "Designated Financial Tests", pro forma basis, or (B) the aggregate consideration paid after the Closing Date for acquisitions (other than acquisitions meeting the requirements of clause (A) above) is not in excess of $10,000,000; provided, however, that the aggregate consideration paid under this clause (c) after the Closing Date for acquisition of persons not incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia shall not in any event exceed $10,000,000 (the foregoing collectively defined as "Permitted Other Acquisitions"); (d) purchase sales or otherwise acquire all or substantially all of other dispositions by the assets or any Equity Interests, or any partnership or joint venture interest in, any other Person or make any Acquisition, in all cases other than: (i) any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, or assignment of or by any Borrower or Subsidiary with and into any Borrower or any Subsidiary so long as of assets (tother than receivables, except to the extent disposed of incidentally in connection with an asset disposition otherwise permitted hereby), for consideration in an aggregate amount not exceeding $25,000,000; provided, however, that (i) no other provision each such disposition shall be for a consideration determined in good faith by the board of this Agreement would directors or senior management of the Borrower to be violated therebyat least equal to the fair market value (if any) of the asset sold, (uii) the aggregate amount of all non-cash consideration included in the case proceeds of any such transactions with a Borrowerdisposition may not exceed 20 percent of the fair market value of such proceeds (provided that obligations of the type referred to in clause (a) of the definition of "Permitted Investments" shall not be deemed non-cash proceeds if such obligations are promptly sold for cash and the proceeds of such sale are included in the calculation of Net Proceeds from such sale), a Borrower (iii) the aggregate Net Proceeds of all such dispositions under this clause (f) shall be the surviving Personapplied in accordance with Section 2.13(b), and (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of such merger or consolidation, (yiv) no Default or Event of Default has shall have occurred and is be continuing either before immediately prior to or after giving effect to that transaction, and (z) the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositionssuch disposition. SECTION 6.06.

Mergers, Consolidations, Sales. NotOther than as previously disclosed to ------------------------------ the Bank in writing, and not permit any Loan Party or Subsidiary thereof to, (a) be a party to any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any of its assets or Equity Interests (including the sale of Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accountsto, or (d) permit any Subsidiary to be a party to, any merger, consolidation or exchange of stock, or purchase or otherwise acquire all or substantially all of the assets or stock of any Equity Interestsclass of, or any partnership or joint venture interest in, any other Person Person, or make sell, transfer, convey or lease all or any Acquisitionsubstantial part of its assets, in all cases other than: or sell or assign, with or without recourse, any receivables, except (i) the Borrower may sell or assign any of its receivables in respect of factoring arrangements previously disclosed in writing to the Bank and (ii) any Subsidiary of Borrower may merge with and into Borrower or any other Subsidiary of Borrower, provided that, with respect to any transaction described in this clause (ii), (A) no Event of Default shall exist or be created by the consummation of any such merger, consolidation, sale, transfer, acquisition, conveyance, lease, or assignment of or by any Borrower or Subsidiary with and into any Borrower or any Subsidiary so long as (tB) no other provision of this Agreement would be violated thereby, the Bank shall have received forty-five (u45) in the case of any such transactions with a Borrower, a Borrower shall be the surviving Person, (v) in the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary shall be the surviving Person, (w) in the case of any such transactions with a Loan Party, a Loan Party shall be the surviving Person, (x) Borrower Representative gives Administrative Agent at least 15 days’ ' prior written notice of any such merger, (C) in respect of any such merger or consolidationbetween two Subsidiaries of the Borrower, the surviving entity shall be a wholly-owned Subsidiary of the Borrower and (D) the Bank shall have received such agreements, documents and instruments as the Bank reasonably shall require (x) to preserve the validity and priority of the Liens in favor of the Bank on the Property transferred to the surviving entity in connection with such merger and (y) no Default or Event in connection with any such merger, including, without limitation, certified copies of Default has occurred the related plan of merger and is continuing either before or after giving effect to that transaction, and (z) the Lenders’ rights in any Collateral, including the existence, perfection and priority certificates of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositionsmerger.

Mergers, Consolidations, Sales. Notof Assets and Acquisitions . Merge into or consolidate with any other person, and not or permit any Loan Party other person to merge into or Subsidiary thereof toconsolidate with it, or Dispose of (ain one transaction or in a series of related transactions) be a party to all or any merger or consolidation, (b) sell, transfer, dispose of, convey or lease any part of its assets (whether now owned or Equity Interests (including the sale hereafter acquired), or Dispose of any Equity Interests of any Subsidiary), (c) sell or assign with or without recourse any Accounts, or (d) purchase purchase, lease or otherwise acquire all (in one transaction or substantially a series of related transactions) all of the assets or any Equity Interests, or any partnership or joint venture interest in, of any other Person person or make any Acquisitiondivision or line of business of a person, in all cases other thanexcept that this Section 6.05 shall not prohibit: (a) (i) any such merger, consolidation, sale, transfer, acquisition, conveyance, leasethe purchase and Disposition of inventory, or assignment the sale of or receivables pursuant to non-recourse factoring arrangements, in each case in the ordinary course of business by any the Borrower or Subsidiary with and into any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business by the Borrower or any Subsidiary so long or, with respect to operating leases, otherwise for fair market value on market terms (as (t) no other provision of this Agreement would be violated therebydetermined in good faith by the Borrower), (uiii) the Disposition of surplus, obsolete, damaged or worn out equipment or other similar property by the Borrower or any Subsidiary in the ordinary course of business or consistent with past practice or industry norm or determined in good faith by the Borrower to be no longer used or useful or necessary in the operation of the business of the Borrower or any Subsidiary, or (iv) the Disposition of Permitted Investments in the ordinary course of business; (b) if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, (i) the merger or consolidation of any Subsidiary of the Borrower with or into the Borrower in a transaction in which the Borrower is the survivor, (ii) the merger or consolidation of any Subsidiary with or into any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is or becomes a Subsidiary Loan Party (or, in the case of any such transactions with a merger or consolidation involving the Borrower, is the Borrower) and, in the case of each of clauses (i) and (ii), no person other than the Borrower or a Subsidiary Loan Party receives any consideration (unless otherwise permitted by Section 6.04), (iii) the merger or consolidation of any Subsidiary that is not a Subsidiary Loan Party with or into any other Subsidiary that is not a Subsidiary Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Subsidiary if the Borrower shall be determines in good faith that such liquidation, dissolution or change in form is in the surviving Personbest interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge or consolidate with any other person in order to effect an Investment permitted pursuant to Section 6.04 so long as the case of any such transactions with a Domestic Subsidiary, a Domestic Subsidiary continuing or surviving person shall be the surviving Persona Subsidiary (unless otherwise permitted by Section 6.04), which shall be (wx) in the case of any such transactions with a Loan Party, a Loan Party shall be if the surviving Person, merging or consolidating Subsidiary was a Loan Party and (xy) the Borrower Representative gives Administrative Agent at least 15 days’ prior written notice of if such merger or consolidationconsolidation involves the Borrower (in each case, unless otherwise permitted by Section 6.04) and which together with each of its Subsidiaries shall have complied with any applicable requirements of Section 5.10 or (yvi) no Default any Subsidiary may merge or Event of Default has occurred and is continuing either before or after giving consolidate with any other person in order to effect an Asset Sale otherwise permitted pursuant to that transaction, and (z) the Lenders’ rights in any Collateral, including the existence, perfection and priority of any Lien thereon, are not adversely affected by that merger or consolidation, (ii) Permitted Acquisitions, and (iii) Permitted Asset Dispositions.this Section 6.05; 162 Doc#: US1:15347125v11