Common use of Consolidations, Mergers or Acquisitions Clause in Contracts

Consolidations, Mergers or Acquisitions. (a) None of the Loan Parties shall recapitalize, consolidate with, merge with, or otherwise acquire all or substantially all of the assets or properties of any other Person (or a division thereof), form or acquire any Subsidiaries or enter into any agreement with respect to any of the foregoing, except for Permitted Acquisitions and except that upon not less than five (5) Business Days prior written notice to Agent, and so long as no Default has then occurred and is continuing or would result therefrom: (i) any Borrower may merge with any other Borrower and any Subsidiary Guarantor may merge with any Borrower, provided that the applicable Borrower shall be the continuing or surviving corporation; (ii) any Subsidiary Guarantor may merge with any other Subsidiary Guarantor; and (iii) any German Subsidiary may merge with any other German Subsidiary. Notwithstanding the foregoing, no Loan Party shall merge with the Company. (b) Any Obligor may acquire the assets or all of the capital stock of a Person engaged in the same line of business as the Loan Parties to the extent such acquisition is approved by Agent (in its sole discretion) or otherwise satisfies each of the following conditions (any such acquisition being referred to as a "Permitted Acquisition"): (i) None of the Loan Parties shall incur or assume any Indebtedness in connection with any such acquisition except for Indebtedness permitted to be incurred or assumed under subsection 8.2. No earn-out or similar payment obligations shall be incurred in connection with such Permitted Acquisition unless approved by Agent; (ii) The sum of all amounts paid or payable by Obligors in connection with such acquisitions (including without limitation, purchase price amounts, non-compete payments and transaction costs) shall not exceed (1) $5,000,000 for any such single acquisition or series of related acquisitions and (2) $10,000,000 in the aggregate for all such acquisitions during the term of this Agreement; (iii) Before and after giving effect to any such acquisition, no Unmatured Default or Default shall have occurred and be continuing; (iv) After giving effect to any such acquisition, Obligors shall be in compliance on a pro forma basis with the financial covenants set forth in subsection 8.18, recomputed for the most recent fiscal quarter for which financial statements have been delivered; (v) Upon consummation of any such acquisition, Agent, on behalf of Lenders, shall have a perfected first priority Lien upon all assets acquired in connection therewith, subject only to Permitted Liens; provided, that if such acquisition involves the acquisition of the capital stock of a Person, then (1) Obligors shall pledge all the capital stock of such Person to Agent upon terms reasonably satisfactory to Agent and (2) Obligors shall cause such Person to guaranty the Liabilities and grant to Agent a perfected first priority lien upon all of such Person's assets (subject only to Permitted Liens) upon terms reasonably satisfactory to Agent; and (vi) Not less than twenty (20) Business Days prior to consummating any such acquisition, Borrower Representative shall deliver to Agent an acquisition summary with respect to such proposed acquisition, such summary to include (1) a reasonably detailed description of the Person (or business) to be acquired (including financial information) and operating results (including financial statements), (2) the terms and conditions, including economic terms, of the proposed acquisition, and (3) pro forma financial projections for the Company and its Subsidiaries for the four fiscal quarters following the date of such proposed acquisition, together with a calculation of Obligors' pro forma compliance with the financial covenants set forth in subsection 8.18 for such period after giving effect to such acquisition; and (vii) Prior to consummating any such acquisition, Borrower Representative shall provide Agent with all acquisition documents relating thereto and such other information (including officer's certificates and opinions of counsel) as Agent shall reasonably request in order to confirm that the conditions set forth herein have been satisfied. (ee) The final enumerated clause of the first sentence of subsection 8.4 of the Loan Agreement (which clause is currently enumerated as clause "(vi)") is hereby amended to read as follows:

Consolidations, Mergers or Acquisitions. (a) None Such Borrower shall not, and shall not permit any of the Loan Parties shall its Subsidiaries to, recapitalize, consolidate with, merge with, or otherwise acquire all or substantially all of the assets or properties of any other Person (or a division thereof), form or acquire any Subsidiaries or enter into any agreement with respect to any of the foregoing; provided, except however, that (A) Rail may acquire (a "Stock Acquisition") one hundred percent (100%) of the stock of a corporation (an "Excluded Subsidiary") if (i) the only consideration paid for Permitted Acquisitions and except that upon the stock of such Excluded Subsidiary is common stock issued by Rail, (ii) the consideration paid for such stock of such Excluded Subsidiary together with the consideration paid for all other Excluded Subsidiaries does not exceed twenty-five percent (25%) of the common stock of Rail outstanding immediately prior to consummation of such proposed acquisition, (iii) Rail does not assume, or in any way become directly or contingently liable for (by operation of law or otherwise), any of the debts or other obligations of such Excluded Subsidiary, (iv) no Default or Event of Default exists immediately prior to, or would exist immediately after, consummation of such acquisition of the stock of the Excluded Subsidiary, (v) each Lender has received written notice of such acquisition as soon as practicable, but in any event not less than five (5) Business Days prior written notice to Agentthe consummation of such acquisition together with copies of all agreements, instruments and documents relating thereto, and so long as no Default has then occurred (vi) on the date of consummation of such acquisition before consummation thereof, Rail delivers to each Lender a certificate dated such date and is continuing signed by the Chief Financial Officer of Rail stating that all of the conditions set forth in this Subsection 8.3(A) have been completely satisfied with respect to such acquisition; and (B) Rail may acquire all or would result therefrom: 73 substantially all of the assets of a going business concern (an "Asset Acquisition") if (i) Rail does not assume, or in any Borrower may merge way become directly or contingently liable for (by operation of law or otherwise), any Contingent Obligations in connection with such Asset Acquisition which, individually or when aggregated with any other Borrower and any Subsidiary Guarantor Contingent Obligations assumed by Rail or for which Rail may merge with any Borrower, provided that the applicable Borrower shall be the continuing directly or surviving corporation; (ii) any Subsidiary Guarantor may merge with any other Subsidiary Guarantor; and (iii) any German Subsidiary may merge with any other German Subsidiary. Notwithstanding the foregoing, no Loan Party shall merge with the Company. (b) Any Obligor may acquire the assets or all of the capital stock of a Person engaged in the same line of business as the Loan Parties to the extent such acquisition is approved by Agent (in its sole discretion) or otherwise satisfies each of the following conditions (any such acquisition being referred to as a "Permitted Acquisition"): (i) None of the Loan Parties shall incur or assume any Indebtedness contingently liable in connection with any such acquisition except for Indebtedness permitted to be incurred or assumed under subsection 8.2. No earn-out or similar payment obligations shall be incurred in connection with such Permitted Acquisition unless approved by Agent; other Assets Acquisitions, exceeds $5,000,000; (ii) The sum no Default exists immediately prior to, or would exist immediately after, consummation of all amounts paid or payable by Obligors such Asset Acquisition; (iii) each Lender has received written notice of such Asset Acquisition as soon as practicable, but in connection with such acquisitions (including without limitation, purchase price amounts, non-compete payments and transaction costs) shall any event not exceed (1) $5,000,000 for any such single acquisition or series of related acquisitions and less than two (2) $10,000,000 weeks prior to the consummation thereof together with (a) copies of all material agreements, instruments and other documents relating thereto, and (b) if such Asset Acquisition involves the acquisition of real property, environmental surveys in form and substance reasonably acceptable, and from a Person reasonably satisfactory, to the aggregate for Agent with respect to such real property, (iv) Agent shall have a valid, first priority (subject to Subsection 8.1) perfected security interest in all personal property and fixtures acquired pursuant to such acquisitions during Asset Acquisition and a valid, first priority (subject to Subsection 8.1) Mortgage to all real property acquired pursuant to such Asset Acquisition, and all necessary or advisable actions in this regard shall have been completed at or prior to the term time of this Agreement; consummation of such Asset Acquisition to the reasonable satisfaction of Agent and its counsel (iiiincluding satisfaction of the requirements of Subsection 5.2 and 5.3 hereof), (v) Before Availability (with respect to Rail) immediately before and immediately after giving effect to any the Permitted Acquisition is not less than $10,000,000, (vi) on the date of consummation of such acquisition, no Unmatured Default or Default shall have occurred Rail delivers a certificate to each Lender dated such date and be continuing; (iv) After giving effect to any such acquisition, Obligors shall be in compliance on a pro forma basis with signed by the financial covenants Chief Financial Officer of Rail stating that all of the conditions set forth in subsection 8.18, recomputed for the most recent fiscal quarter for which financial statements have been delivered; Subsection 8.3(B)(i) through (v) Upon have been completely satisfied with respect to such acquisition (except that as to the matters referenced in Subsection 8.3(B)(i) such certificate shall be to the best of such officer's knowledge as to the facts referenced therein after conducting a reasonable inquiry with respect thereto), and (vii) within ninety (90) days after consummation of any such acquisitionAsset Acquisition, Agent, on behalf of Lenders, shall have a perfected first priority Lien upon all assets acquired in connection therewith, subject only to Permitted Liens; provided, that if such acquisition involves the acquisition of the capital stock of a Person, then (1) Obligors shall pledge all the capital stock of such Person to Agent upon terms reasonably satisfactory to Agent and (2) Obligors shall cause such Person to guaranty the Liabilities and grant to Agent a perfected first priority lien upon all of such Person's assets (subject only to Permitted Liens) upon terms reasonably satisfactory to Agent; and (vi) Not less than twenty (20) Business Days prior to consummating any such acquisition, Borrower Representative Rail shall deliver to Agent written appraisals of the value (determined on a forced sale basis and an acquisition summary with respect orderly liquidation sale basis) of all Equipment purchased pursuant to such proposed acquisition, such summary to include (1) a reasonably detailed description Asset Acquisition and appraisals of the Person value (or businessdetermined on a fair market value basis) to be of all real property acquired (including financial information) and operating results (including financial statements), (2) the terms and conditions, including economic terms, of the proposed acquisition, and (3) pro forma financial projections for the Company and its Subsidiaries for the four fiscal quarters following the date of such proposed acquisition, together with a calculation of Obligors' pro forma compliance with the financial covenants set forth in subsection 8.18 for such period after giving effect pursuant to such acquisition; and (vii) Prior to consummating any such acquisition, Borrower Representative shall provide Agent Asset Acquisition that comply with all acquisition documents relating thereto requirements of FIRREA, in each case prepared by an appraiser selected and such other information (including officerretained by Agent at Rail's certificates expense and opinions of counsel) as Agent shall reasonably request satisfactory in order form, scope and methodology to confirm that the conditions set forth herein have been satisfiedAgent. (ee) The final enumerated clause of the first sentence of subsection 8.4 of the Loan Agreement (which clause is currently enumerated as clause "(vi)") is hereby amended to read as follows:

Consolidations, Mergers or Acquisitions. (a) None Such Borrower shall not, and shall not permit any of the Loan Parties shall its Subsidiaries to, recapitalize, consolidate with, merge with, or otherwise acquire all or substantially all of the assets or properties of any other Person (or a division thereof), form or acquire any Subsidiaries or enter into any agreement with respect to any of the foregoing; provided, except however, that (A) Rail may acquire (a "Stock Acquisition") one hundred percent (100%) of the stock of a corporation (an "Excluded Subsidiary") if (i) the only consideration paid for Permitted Acquisitions and except that upon the stock of such Excluded Subsidiary is common stock issued by Rail, (ii) the consideration paid for such stock of such Excluded Subsidiary together with the consideration paid for all other Excluded Subsidiaries does not exceed twenty-five percent (25%) of the common stock of Rail outstanding immediately prior to consummation of such proposed acquisition, (iii) Rail does not assume, or in any way become directly or contingently liable for (by operation of law or otherwise), any of the debts or other obligations of such Excluded Subsidiary, (iv) no Default or Event of Default exists immediately prior to, or would exist immediately after, consummation of such acquisition of the stock of the Excluded Subsidiary, (v) each Lender has received written notice of such acquisition as soon as practicable, but in any event not less than five (5) Business Days prior written notice to Agentthe consummation of such acquisition together with copies of all agreements, instruments and documents relating thereto, and so long as no Default has then occurred (vi) on the date of consummation of such acquisition before consummation thereof, Rail delivers to each Lender a certificate dated such date and is continuing signed by the Chief Financial Officer of Rail stating that all of the conditions set forth in this Subsection 8.3(A) have been completely satisfied with respect to such acquisition; and (B) Rail may acquire all or would result therefrom: substantially all of the assets of a going business concern (an "Asset Acquisition") if (i) Rail does not assume, or in any Borrower may merge way become directly or contingently liable for (by operation of law or otherwise), any Contingent Obligations in connection with such Asset Acquisition which, individually or when aggregated with any other Borrower and any Subsidiary Guarantor Contingent Obligations assumed by Rail or for which Rail may merge with any Borrower, provided that the applicable Borrower shall be the continuing directly or surviving corporation; (ii) any Subsidiary Guarantor may merge with any other Subsidiary Guarantor; and (iii) any German Subsidiary may merge with any other German Subsidiary. Notwithstanding the foregoing, no Loan Party shall merge with the Company. (b) Any Obligor may acquire the assets or all of the capital stock of a Person engaged in the same line of business as the Loan Parties to the extent such acquisition is approved by Agent (in its sole discretion) or otherwise satisfies each of the following conditions (any such acquisition being referred to as a "Permitted Acquisition"): (i) None of the Loan Parties shall incur or assume any Indebtedness contingently liable in connection with any such acquisition except for Indebtedness permitted to be incurred or assumed under subsection 8.2. No earn-out or similar payment obligations shall be incurred in connection with such Permitted Acquisition unless approved by Agent; other Assets Acquisitions, exceeds $5,000,000; (ii) The sum no Default exists immediately prior to, or would exist immediately after, consummation of all amounts paid or payable by Obligors such Asset Acquisition; (iii) each Lender has received written notice of such Asset Acquisition as soon as practicable, but in connection with such acquisitions (including without limitation, purchase price amounts, non-compete payments and transaction costs) shall any event not exceed (1) $5,000,000 for any such single acquisition or series of related acquisitions and less than two (2) $10,000,000 weeks prior to the consummation thereof together with (a) copies of all material agreements, instruments and other documents relating thereto, and (b) if such Asset Acquisition involves the acquisition of real property, environmental surveys in form and substance reasonably acceptable, and from a Person reasonably satisfactory, to the aggregate Agent with respect to such real property unless an adjustment with respect to such real property is made in determining Adjusted Goodwill for purposes of Subsection 4.3(C), (iv) Agent shall have a valid, first priority (subject to Subsection 8.1) perfected security interest in all personal property and fixtures acquired pursuant to such acquisitions during Asset Acquisition and a valid, first priority (subject to Subsection 8.1) Mortgage to all real property acquired pursuant to such Asset Acquisition, and all necessary or advisable actions in this regard shall have been completed at or prior to the term time of this Agreement; consummation of such Asset Acquisition to the reasonable satisfaction of Agent and its counsel (iiiincluding satisfaction of the requirements of Subsection 5.2 and 5.3 hereof), (v) Before Availability (with respect to Rail) immediately before and immediately after giving effect to any the Permitted Acquisition is not less than $10,000,000, (vi) on the date of consummation of such acquisition, no Unmatured Default or Default shall have occurred Rail delivers a certificate to each Lender dated such date and be continuing; (iv) After giving effect to any such acquisition, Obligors shall be in compliance on a pro forma basis with signed by the financial covenants Chief Financial Officer of Rail stating that all of the conditions set forth in subsection 8.18, recomputed for the most recent fiscal quarter for which financial statements have been delivered; Subsection 8.3(B)(i) through (v) Upon have been completely satisfied with respect to such acquisition (except that as to the matters referenced in Subsection 8.3(B)(i) such certificate shall be to the best of such officer's knowledge as to the facts referenced therein after conducting a reasonable inquiry with respect thereto), and (vii) within ninety (90) days after consummation of any such acquisitionAsset Acquisition, Agent, on behalf of Lenders, shall have a perfected first priority Lien upon all assets acquired in connection therewith, subject only to Permitted Liens; provided, that if such acquisition involves the acquisition of the capital stock of a Person, then (1) Obligors shall pledge all the capital stock of such Person to Agent upon terms reasonably satisfactory to Agent and (2) Obligors shall cause such Person to guaranty the Liabilities and grant to Agent a perfected first priority lien upon all of such Person's assets (subject only to Permitted Liens) upon terms reasonably satisfactory to Agent; and (vi) Not less than twenty (20) Business Days prior to consummating any such acquisition, Borrower Representative Rail shall deliver to Agent written appraisals of the value (determined on a forced sale basis and an acquisition summary with respect orderly liquidation sale basis) of all Equipment purchased pursuant to such proposed acquisition, such summary to include (1) a reasonably detailed description Asset Acquisition and appraisals of the Person value (or businessdetermined on a fair market value basis) to be of all real property acquired (including financial information) and operating results (including financial statements), (2) the terms and conditions, including economic terms, of the proposed acquisition, and (3) pro forma financial projections for the Company and its Subsidiaries for the four fiscal quarters following the date of such proposed acquisition, together with a calculation of Obligors' pro forma compliance with the financial covenants set forth in subsection 8.18 for such period after giving effect pursuant to such acquisition; and (vii) Prior to consummating any such acquisition, Borrower Representative shall provide Agent Asset Acquisition that comply with all acquisition documents relating thereto requirements of FIRREA, in each case prepared by an appraiser selected and such other information (including officerretained by Agent at Rail's certificates expense and opinions of counsel) as Agent shall reasonably request satisfactory in order form, scope and methodology to confirm that the conditions set forth herein have been satisfiedAgent. (ee) The final enumerated clause of the first sentence of subsection 8.4 of the Loan Agreement (which clause is currently enumerated as clause "(vi)") is hereby amended to read as follows:

Consolidations, Mergers or Acquisitions. (a) None Such Borrower shall not, and shall not permit any of the Loan Parties shall its Subsidiaries to, recapitalize, consolidate with, merge with, or otherwise acquire consummate an acquisition (an "Acquisition"), directly or indirectly, of all or substantially all of the business, assets or properties of any other Person (or a any division thereof), form or acquire line of business of any Subsidiaries other Person or enter into any agreement with respect to any of the foregoing; provided, except for Permitted however, that (i) subject to the immediately following sentence, Deco may merge into Rail with Rail being the surviving entity, provided written notice thereof is promptly given to Agent; (ii) Rail or any Wholly-Owned Subsidiary may consummate an Acquisition and enter into an agreement to consummate an Acquisition if (a) the aggregate "Acquisition Price" (as defined below) with respect to any such Acquisition does not exceed $2,000,000; (b) the aggregate Acquisition Price with respect to all Acquisitions and except that upon does not less than five exceed $10,000,000; (5c) Business Days no Default or Event of Default exists immediately prior to, or would exist (determined on a pro forma basis) immediately after, such Acquisition; (d) Rail has provided written notice to AgentAgent of such Acquisition as soon as practicable prior to consummation thereof; (e) Agent shall have a valid, first priority (subject to Subsection 8.1) perfected security interest in all personal property and fixtures acquired pursuant to such Acquisition and a valid, first priority (subject to Subsection 8.1) Mortgage on all real property acquired pursuant to such Acquisition, and so long as no Default has then occurred and is continuing all necessary or would result therefrom: (i) any Borrower may merge with any other Borrower and any Subsidiary Guarantor may merge with any Borrower, provided that the applicable Borrower advisable actions in this regard shall be the continuing have been completed at or surviving corporation; (ii) any Subsidiary Guarantor may merge with any other Subsidiary Guarantor; and (iii) any German Subsidiary may merge with any other German Subsidiary. Notwithstanding the foregoing, no Loan Party shall merge with the Company. (b) Any Obligor may acquire the assets or all of the capital stock of a Person engaged in the same line of business as the Loan Parties prior to the extent time of consummation of such acquisition is approved by Acquisition to the reasonable satisfaction of Agent and its counsel (in its sole discretion) or otherwise satisfies each of the following conditions (any such acquisition being referred to as a "Permitted Acquisition"): (i) None of the Loan Parties shall incur or assume any Indebtedness in connection with any such acquisition except for Indebtedness permitted to be incurred or assumed under subsection 8.2. No earn-out or similar payment obligations shall be incurred in connection with such Permitted Acquisition unless approved by Agent; (ii) The sum of all amounts paid or payable by Obligors in connection with such acquisitions (including including, without limitation, purchase price amountssatisfaction of the requirements of Subsection 5.2 and 5.3 hereof and execution and delivery of such security agreements or other documents as Agent may request); (f) concurrently with consummating such Acquisition, non-compete payments Rail causes the entity surviving such Acquisition to execute and transaction costsdeliver to Agent a guaranty, in form and substance acceptable to Agent, of all Liabilities (unless such surviving entity is Rail or a Subsidiary that has already delivered such a guaranty to Agent) shall not exceed (1) $5,000,000 for any such single acquisition or series of related acquisitions and (2g) $10,000,000 in the aggregate for all such acquisitions during the term of this Agreement; Availability (iiiwith respect to Rail) Before immediately before and immediately after giving effect to any such acquisition, no Unmatured Default or Default shall have occurred and be continuing; (iv) After giving effect to any such acquisition, Obligors shall be in compliance on a pro forma basis with the financial covenants set forth in subsection 8.18, recomputed for the most recent fiscal quarter for which financial statements have been delivered; (v) Upon consummation of any such acquisition, Agent, on behalf of Lenders, shall have a perfected first priority Lien upon all assets acquired in connection therewith, subject only to Permitted Liens; provided, that if such acquisition involves the acquisition of the capital stock of a Person, then (1) Obligors shall pledge all the capital stock of such Person to Agent upon terms reasonably satisfactory to Agent and (2) Obligors shall cause such Person to guaranty the Liabilities and grant to Agent a perfected first priority lien upon all of such Person's assets (subject only to Permitted Liens) upon terms reasonably satisfactory to Agent; and (vi) Not less than twenty (20) Business Days prior to consummating any such acquisition, Borrower Representative shall deliver to Agent an acquisition summary with respect to such proposed acquisition, such summary to include (1) a reasonably detailed description of the Person (or business) to be acquired (including financial information) and operating results (including financial statements), (2) the terms and conditions, including economic terms, of the proposed acquisition, and (3) pro forma financial projections for the Company and its Subsidiaries for the four fiscal quarters following the date of such proposed acquisition, together with a calculation of Obligors' pro forma compliance with the financial covenants set forth in subsection 8.18 for such period after giving effect to such acquisition; and (vii) Prior to consummating any such acquisition, Borrower Representative shall provide Agent with all acquisition documents relating thereto and such other information (including officer's certificates and opinions of counsel) as Agent shall reasonably request in order to confirm that the conditions set forth herein have been satisfied. (ee) The final enumerated clause of the first sentence of subsection 8.4 of the Loan Agreement (which clause is currently enumerated as clause "(vi)") is hereby amended to read as follows:such