Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person); provided that: (a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division; (b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); provided that each of the following requirements is met: (i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition; (ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants; (iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and (iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders; (c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6 (a) are complied with, to the extent applicable; (d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve; (e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted; (f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and (g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 2 contracts
Samples: Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Energy Inc.)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect or acquire all or substantially all of a business or division or make of any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another other Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, entity and (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionentity;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (xw) Equity Interests all of the ownership interests of another PersonPerson that becomes a Restricted Subsidiary, (yx) substantially all of the assets of another Person or the assets constituting a business or division of another Person or Person, (zy) the material assets of another Person Person, or (z) any material portion of any Specified Other Assets, or Permitted Other Undivided Interests (including any increase in the ownership percentage of Permitted Other Undivided Interests) (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
(i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall the amount of unused Revolving Credit Commitments that could be drawn without breaching the Financial Covenants must be greater than or equal to at least $275,000,000 and 10% of the aggregate Revolving Credit Commitments at such time;
(yiii) after giving effect to such Permitted Acquisition, the Borrower and its Restricted Subsidiaries shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iiiiv) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(ivv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents Agent before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents Agent and not subject to confidentiality obligations owed to any PersonPerson other than CEI or any of its Subsidiaries, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents Agent may, to the extent they receive it receives any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;; and
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 2 contracts
Samples: Revolving Credit Facility (CNX Coal Resources LP), Revolving Credit Facility (CNX Coal Resources LP)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving of a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person all Persons resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionParties;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, Person or (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
(i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) the Borrower shall have, after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition 200,000,000 of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)Liquidity; and
(iviii) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents Agent before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iiiii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such Permitted Acquisition and such other information about such Person or its assetsassets as the Administrative Agent may reasonably require, and the Administrative Agents mayAgent shall, to the extent they receive it receives any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) the Borrower or any Restricted Subsidiary may make Permitted Business Investments;
(d) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a8.2.6(a) [Liquidations, Mergers, Consolidations, Acquisitions] are complied with, to the extent applicable;
(de) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;; and
(ef) mergers, consolidations and acquisitions in connection with entity reorganizations to the extent necessary to effectuate the Midstream GP IPO shall be permitted, so long as after giving effect to any liquidation, such merger, consolidation or acquisition of any Restricted Subsidiary with acquisition, the Collateral Agent’s interest in the Collateral is not materially impaired or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinreduced.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests assets or capital stock of another any other Person); provided , PROVIDED that:
(a) (i1) any Restricted Subsidiary Loan Party other than the Borrower may consolidate or merge into another Loan Party which is either the Borrower or wholly-owned by one or more of the other Loan Parties, any other Restricted Subsidiary of any Loan Party may be merged or acquire Equity Interests in any Restricted Subsidiary; combined with or into another Subsidiary (provided that in if the case of Borrower is a consolidation party to any such merger or merger involving combination, then the Borrower shall be the continuing or surviving Person and if a Loan Party, Subsidiary which is not a Loan Party is the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be merges with a Loan Party then the Loan Party shall be the continuing or surviving Person), any Loan Party other than the Borrower and any Subsidiary which is not a Loan Party may dissolve, liquidate or wind-up its affairs and distribute its remaining assets, after giving effect paying or providing for its liabilities, to such division its owners and any Foreign Subsidiary may dissolve, liquidate or wind-up its affairs, become a party to a merger or consolidation or acquire all or substantially all the assets or capital of any Person.
(2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Partymay acquire, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xA) Equity Interests all of the ownership interests of another Person, including without limitation, the acquisition of the capital stock of Q Services, Inc. under the terms and conditions of the Plan and Agreement of Merger dated May 13, 2002 among the Borrower, Q Services, Inc. and Key Merger Sub, Inc., or (yB) all or substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, a “each an "Permitted Acquisition”"); provided , PROVIDED that each of the following requirements is met:
(i) if the Loan Parties are acquiring the ownership interests in such Person, the Loan Parties shall use reasonable commercial efforts to cause such Person to execute a Guarantor Joinder and join this Agreement as a Guarantor pursuant to Section 10.18 [Joinder of Guarantors] on or before the date of such Permitted Acquisition (but in any event shall perform such steps within 30 days after such date) if such Person will become a Domestic Subsidiary;
(ii) the Loan Parties, such Person and its owners, as applicable, shall use reasonable commercial efforts to cause such Person to grant Liens in the assets of or acquired from and stock or other ownership interests in such Person and otherwise comply with Section 10.18 [Joinder of Guarantors] on or before the date of such Permitted Acquisition (but in any event shall perform such steps within 30 days after such date) if such Person will become a Domestic Subsidiary;
(iii) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and upon the request of the Administrative Agent, the Loan Parties also shall deliver to the Lenders written evidence of the approval of the board of directors (or equivalent body) of such Person for such Permitted Acquisition;
(iv) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be in the oilfield service industry or a business reasonably related to a business in which the Loan Parties are then engaged and shall comply with Section 7.2.11 [Continuation of or Change in Business];
(v) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(iivi) if the Consideration given by the Loan Parties and their Subsidiaries in connection with such Permitted Acquisition for such Permitted Acquisition exceeds $0, the sum of items (I) and (II) below shall equal or exceed $25,000,000 on the date of such Permitted Acquisition after giving effect thereto:
(I) the Loan Parties' cash plus Cash Equivalents; plus
(II) the lesser of (a) the amount if any by which the Commitments exceed the Facility Usage, or (b) the amount if any by which the Total Usage Limitation exceeds the Total Usage; and
(vii) if the Consideration given by the Loan Parties and their Subsidiaries in connection with such Permitted Acquisition exceeds $10,000,000 and the Leverage Modification Period (for Acquisitions) is not in effect, the Consolidated Senior Leverage Ratio shall not exceed 2.25 to 1.0 after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iiiviii) to if the extent that Consideration given by the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party Parties and their Subsidiaries in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries Permitted Acquisition for such Permitted Acquisition exceeds the Threshold Amount$25,000,000, the Restricted Subsidiaries Borrower shall at least five (5) Business Days prior to such Permitted Acquisition:
(I) demonstrate that it shall be in compliance with the covenants contained in Sections 7.2.15 [Minimum Consolidated Fixed Charge Coverage Ratio], 7.2.16 [Maximum Consolidated Senior Leverage Ratio], 7.2.17 [Maximum Consolidated Total Leverage Ratio] and 7.2.18 [ Minimum Net Worth] after giving effect to such Permitted Acquisition (including in the computation of Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio Indebtedness assumed or incurred in connection with such Permitted Acquisition and including in Consolidated EBITDA the Consolidated EBITDA of the target to the extent provided for under the definition of Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio by delivering a certificate in the form of EXHIBIT 7.2.7 evidencing such compliance, and
(II) deliver to the Administrative Agents Agent at least five (5) Business Days before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, Acquisition copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such Permitted Acquisition and Acquisition, and;
(ix) the Loan Parties shall deliver to the Administrative Agent such other information about such Person or its assets, and assets as the Administrative Agents mayAgent may reasonably require, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g3) the transactions permitted by any Loan Party, and any Subsidiary of a Loan Party, may sell, lease, transfer or otherwise dispose of any or all of its assets so long as such transaction does not violate Section 8.2.4(v) 7.2.8 [Investments] shall be permitted on the terms set forth thereinDispositions of Assets or Subsidiaries].
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests assets or capital stock of another any other Person); , provided that:
(a) (i1) any Restricted Subsidiary Loan Party other than the Borrower may consolidate with or merge into another Loan Party and any other Restricted Subsidiary of the Borrower may consolidate with or acquire Equity Interests in any Restricted Subsidiary; provided that in merge into another Subsidiary of the case of a consolidation Borrower or merger involving a Loan Party, into a Loan Party is if the Loan Party shall be the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and and
(2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by or Subsidiary of a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Partymay acquire, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xA) Equity Interests all of the ownership interests of another Person, Person or (yB) substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, a “each an "Permitted Acquisition”"); , provided that each of the following requirements is met:
(i) if the Loan Parties will form or acquire any Material Subsidiary in such acquisition or if any existing Subsidiary shall become a Material Subsidiary as a result of such acquisition, such Material Subsidiary shall execute a Guarantor Joinder and join this Agreement, the Guaranty Agreement and the Intercompany Agreement pursuant to Section 11.18,
(ii) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as one or more line or lines of business conducted by the Loan Parties and shall comply with Section 8.2.10,
(iii) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;, and
(iiiv) the Borrower shall demonstrate that it shall be in compliance with the covenants contained in Sections 8.2.1, 8.2.6, and 8.2.15 after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be Acquisition by delivering at least $275,000,000 and ten (y10) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) Business Days prior to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) such compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 1 contract
Samples: Credit Agreement (Roundys Inc)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower None of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect or acquire by purchase, lease or otherwise all or substantially all of a business or division or make of any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another other Person); , provided that:
(a) (i) any Restricted Subsidiary Loan Party (other than the Borrower) may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, (ii) and any Restricted Subsidiary Loan Party may consolidate or merge into the Borrower; , provided that the Borrower is the surviving entity entity, and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other may consolidate or merge with another Person resulting from such division shall be that is required to become a Loan Party after giving effect to so long as such division and Loan Party is the survivor of such consolidation or merger;
(2ii) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xa) Equity Interests all of the ownership interests of another Person or (b) substantially all of assets of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that each of the following requirements is met:
(iA) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as, or shall support or be complementary to, one or more line or lines of business conducted by the Loan Parties and shall comply with Section 8.2.10 [Continuation of or Change in Business];
(B) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(iiC) the Borrower shall have, after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants100,000,000 of Availability;
(iiiD) to (1) the extent that the acquisition includes the acquisition of Equity Interests pro forma Leverage Ratio (including in any Person that is not a Loan Party or that does not become a Loan Party such computation Indebtedness incurred in connection with such acquisitionPermitted Acquisition and including income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) is less than 3.5 to 1.0 after taking into account such Permitted Acquisition or (2) if the pro forma Leverage Ratio (including in such computation Indebtedness incurred in connection with such Permitted Acquisition and including income earned or expenses incurred by the Person, business or assets by any Restricted Subsidiary that to be acquired prior to the date of such Permitted Acquisition) is not a Loan Party3.5 to 1.0 or higher after taking into account such Permitted Acquisition, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to be paid by the Loan Parties for such Equity Interests or assets Permitted Acquisition plus the Consideration paid for all other Permitted Acquisitions in the then current fiscal year shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)not exceed $100,000,000; and
(ivE) if the Consideration to be paid by the Restricted Subsidiaries Loan Parties for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries Loan Parties shall deliver to the Administrative Agents Agent at least five (5) Business Days before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) pro forma compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary covenant contained in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.Section
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Unregulated Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests assets or capital stock of another any other Person); , provided that:
(a) (i) any Restricted Subsidiary Loan Party other than the Borrower may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a another Loan Party which is wholly-owned by one or more of the surviving entity, other Loan Parties,
(ii) any Restricted Unregulated Subsidiary of the Borrower that is not a Loan Party may dissolve, liquidate or wind-up its affairs or may consolidate or merge into the Borrower or any other Unregulated Subsidiary of the Borrower; , provided that if any such merger or consolidation is with a Loan Party, the Borrower is the entity surviving entity and or resulting from such merger or consolidation shall be a Loan Party, and
(iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and or any other Person resulting from such division shall be Subsidiary of a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Partymay acquire, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xa) Equity Interests all of the ownership interests of another Person, Person or (yb) substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that each of the following requirements is met:
(ia) if the Loan Parties are acquiring the ownership interests in such Person, such Person shall, if required to be a Guarantor under Section 8.2.8 [Subsidiaries], execute a Guarantor Joinder and join this Agreement as a Guarantor in accordance with Section 8.1.15 [Joinder of Guarantors];
(b) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(c) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be engaged in a Permitted Business;
(d) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in including without limitation pro forma compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 8.2.16 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)Maximum Leverage Ratio]; and
(ive) if the Consideration to be paid promptly upon written request therefor by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold AmountLender, the Restricted Subsidiaries Loan Parties shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, Lender copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such a Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to target thereof as the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business Lender may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinreasonably request.
Appears in 1 contract
Samples: Term Loan Credit Agreement (New Jersey Resources Corp)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower None of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect or acquire by purchase, lease or otherwise all or substantially all of a business or division or make of any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another other Person); , provided that:
(a) (i) any Restricted Subsidiary Loan Party (other than the Borrower) may consolidate or merge into any other Restricted Subsidiary Loan Party and any Loan Party may consolidate or acquire Equity Interests in any Restricted Subsidiary; merge into Borrower, provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party Borrower is the surviving entity, and any Loan Party may consolidate or merge with another Person that is required to become a Loan Party so long as such Loan Party is the survivor of such consolidation or merger;
(ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xa) Equity Interests all of the ownership interests of another Person or (b) substantially all of assets of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that each of the following requirements is met:met (if the acquisition relates to CNX Gas, only clause (B) shall be applicable):
(iA) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as, or shall support or be complementary to, one or more line or lines of business conducted by the Loan Parties and shall comply with Section 8.2.10 [Continuation of or Change in Business];
(B) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(iiC) the Borrower shall have, after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants100,000,000 of Availability;
(iiiD) to (1) the extent that the acquisition includes the acquisition of Equity Interests pro forma Leverage Ratio (including in any Person that is not a Loan Party or that does not become a Loan Party such computation Indebtedness incurred in connection with such acquisitionPermitted Acquisition and including income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) is less than 3.5 to 1.0 after taking into account such Permitted Acquisition or (2) if the pro forma Leverage Ratio (including in such computation Indebtedness incurred in connection with such Permitted Acquisition and including income earned or expenses incurred by the Person, business or assets by any Restricted Subsidiary that to be acquired prior to the date of such Permitted Acquisition) is not a Loan Party3.5 to 1.0 or higher after taking into account such Permitted Acquisition, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to be paid by the Loan Parties for such Equity Interests or assets Permitted Acquisition plus the Consideration paid for all other Permitted Acquisitions in the then current fiscal year shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)not exceed $100,000,000; and
(ivE) if the Consideration to be paid by the Restricted Subsidiaries Loan Parties for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries Loan Parties shall deliver to the Administrative Agents Agent at least five (5) Business Days before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, pro forma compliance with the Financial Covenants and covenant contained in Section 8.2.16 [Minimum Interest Coverage Ratio], (y) if the Permitted Acquisition is of the type set forth in Subsection 8.2.6(ii)(D)(2) above, pro forma compliance with the applicable requirements covenant contained in Section 8.2.17 [Maximum Senior Secured Leverage Ratio] or, if the Permitted Acquisition is of clauses the type set forth in Subsection 8.2.6(ii)(D)(1) above, that the pro-forma Leverage Ratio is less than 3.5 to 1.0 (b)(i)and in each case including in such computations Indebtedness incurred in connection with such Permitted Acquisition and including income earned or expenses incurred by the Person, (iibusiness or assets to be acquired prior to the date of such Permitted Acquisition) and (iiiz) that the Borrower shall have, after giving effect to such Permitted Acquisition, at least $100,000,000 of this Section 8.2.6 Availability, and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such Permitted Acquisition and shall deliver to the Administrative Agent such other information about such Person or its assetsassets as the Administrative Agent may reasonably require, and the Administrative Agents mayAgent shall, to the extent they receive it receives any such copies of agreements or information, provide such copies of agreements or information to the Lenders;.
(ciii) Dispositions permitted by Section 8.2.7 [Dispositions] any Loan Party may consummate the Dominion Acquisition and any liquidationit shall be deemed to be a Permitted Acquisition, mergerprovided, consolidation or acquisition to effect such Dispositionthat:
(A) the Dominion Acquisition shall be consummated in accordance with the terms of the Dominion Acquisition Documents; provided that the Dominion Acquisition Documents delivered to the Administrative Agent shall not have been amended, waived or otherwise modified in any material respect and no material consent shall be given thereunder, without the case prior written consent of a consolidation the Administrative Agent (such consent not to be unreasonably withheld, conditioned or merger, the requirements of Section 8.2.6delayed); and
(aB) are complied with, no Event of Default shall exist immediately prior to and after giving effect to the extent applicable;Dominion Acquisition; and
(div) any Restricted Subsidiary Loan Party that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower None of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect or acquire by purchase, lease or otherwise all or substantially all of a business or division or make of any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another other Person); , provided that:
(a) (i) any Restricted Subsidiary Loan Party (other than the Borrower) may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, (ii) and any Restricted Subsidiary Loan Party may consolidate or merge into the Borrower; , provided that the Borrower is the surviving entity entity, and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other may consolidate or merge with another Person resulting from such division shall be that is required to become a Loan Party after giving effect to so long as such division and Loan Party is the survivor of such consolidation or merger;
(2ii) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xa) Equity Interests all of the ownership interests of another Person or (b) substantially all of assets of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that each of the following requirements is met:
(iA) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as, or shall support or be complementary to, one or more line or lines of business conducted by the Loan Parties and shall comply with Section 8.2.10 [Continuation of or Change in Business];
(B) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(iiC) the Borrower shall have, after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and 100,000,000 of Availability;
(yD) (1) the Borrower shall pro forma Leverage Ratio (including in such computation Indebtedness incurred in connection withafter giving effect to such Permitted Acquisition and including income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) is less than 3.5 to 1.0 after taking into account such Permitted Acquisition or (2) if the pro forma Leverage Ratio (including in compliance such computation Indebtedness incurred in connection with such Permitted Acquisition and including income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) is 3.5 to 1.0 or higher after taking into account such Permitted Acquisition,, (1) on a Pro Forma Basis with Basis, the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition Leverage Ratio shall be subject less than 3.50 to Section 8.2.4 [Loans and Investments] 1.00 or (without giving effect to clause (c2) thereof) and the aggregate Consideration attributable to be paid by the Loan Parties for such Equity Interests or assets Permitted Acquisition plus the Consideration paid for all other Permitted Acquisitions in the then current fiscal year shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)not exceed $100,000,000; and
(ivE) if the Consideration to be paid by the Restricted Subsidiaries Loan Parties for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries Loan Parties shall deliver to the Administrative Agents Agent at least five (5) Business Days before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) pro forma compliance, on a Pro Forma Basis, with the Financial Covenants covenantcovenants contained in Section 8.2.16 [Minimum Interest Coverage Ratio], (y) if the Permitted Acquisition is of the type set forth in Subsection 8.2.6(ii)(D)(2) above, pro forma compliance with the covenant contained in and Section 8.2.17 [Maximum Senior Secured Leverage Ratio] or, if the Permitted Acquisition is of the type set forth in Subsection 8.2.6(ii)(D)(1) above, that the pro forma Leverage Ratio is less than 3.5 to 1.0 (and in each case including in such computations Indebtedness incurred in connection with such Permitted Acquisition and including income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition), (y) compliance with the applicable requirements of clauses clause (b)(i), (ii) and (iiiii)(D) of this Section 8.2.6 and (z) that the Borrower shall have, after giving effect to such Permitted Acquisition, at least $100,000,000 of Availability, and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such Permitted Acquisition and shall deliver to the Administrative Agent such other information about such Person or its assetsassets as the Administrative Agent may reasonably require, and the Administrative Agents mayAgent shall, to the extent they receive it receives any such copies of agreements or information, provide such copies of agreements or information to the Lenders;; and
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(diii) any Restricted Subsidiary Loan Party that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 1 contract
Samples: Credit Agreement (CONSOL Energy Inc)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person)Acquisition; provided thatprovided:
(i) that any Loan Party or Subsidiary may (a) (i) any Restricted Subsidiary may consolidate consolidate, amalgamate or merge into any other Restricted a Loan Party or another Subsidiary or acquire Equity Interests in any Restricted that is a Wholly-Owned Subsidiary; , provided that in the case of a consolidation if any such consolidation, amalgamation or merger involving involves (w) a Loan Party, a Loan Party is the surviving entityshall survive such consolidation, (ii) any Restricted Subsidiary may consolidate amalgamation or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that merger, (x) in the event of if any division involving such consolidation, amalgamation or merger involves a Borrower, a Borrower shall survive such merger or consolidation or (y) if any such consolidation or merger involves a Domestic Loan Party, (1) the dividing a Domestic Loan Party (if surviving) and any other Person resulting from shall survive such division shall be a Loan Party after giving effect to such division merger or consolidation and (2z) if any assets such consolidation, amalgamation or other property held by any Loan Party immediately prior to merger involves the Parent, the Parent shall survive such division merger, amalgamation or consolidation or (b) so long as no Event of Default or Potential Default shall continue to be held by a Loan Party after giving effect to such division and (y) in exist, dissolve, liquidate or wind-up the event affairs of any division involving a Restricted Subsidiary of the Parent that is not a Loan PartyParty if (I) the Loan Parties determine in good faith that such dissolution, (1) such dividing Restricted Subsidiary (if surviving) liquidation or winding-up is in the best interest of the Loan Parties and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect not materially disadvantageous to such division the Lenders and (2II) any all of its assets are distributed to one or other property held by any Restricted Subsidiary immediately prior to more Group Members that are the shareholders in such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionentity or it owns no material assets;
(bii) the Borrower any Loan Party or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, make an Acquisition (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that each of the following requirements is met:
(iA) in the case of any purchase or other acquisition of Equity Interests in a Person, such Person will either (x) be merged or consolidated into a Group Member with such Group Member being the surviving entity or (y) be a Wholly-Owned Subsidiary (including as a result of a merger or consolidation between any Subsidiary and such Person) or in the case of any purchase or other acquisition of other assets, such assets will be owned by a Group Member;
(B) the Loan Parties shall, and shall cause each Subsidiary to, comply with Section 8.1.12 [Additional Collateral; Joinder of Subsidiaries] and Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] on or before the date of such Permitted Acquisition (or, if the Administrative Agent consents, such later period as shall be agreed by the Administrative Agent); 110
(C) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and such Permitted Acquisition was not preceded by or consummated pursuant to, an unsolicited tender offer or proxy contest initiated by or on behalf of the Parent or any Subsidiary;
(D) the business acquired, or the business conducted by the Person whose Equity Interests are being acquired, as applicable, shall be substantially the same as or similar or reasonably related to one or more line or lines of business conducted by the Loan Parties and their Subsidiaries and there shall not be a breach of Section 8.2.10 [Continuation of or Change in Business] after giving effect to such Acquisition;
(E) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(iiF) the Parent shall demonstrate that the Loan Parties shall have, after giving effect to such Permitted Acquisition and any Indebtedness associated therewith (I) a pro forma Leverage Ratio that is not greater than 3.00 to 1.00 in the case of a Step-Up Acquisition for which the Borrowers have notified the Administrative Agent in writing that they are exercising their rights under the last paragraph of Section 8.2.15 [Maximum Leverage Ratio] to “step-up” the maximum Leverage Ratio, and not greater than 2.75 to 1.00 in the case of any other Permitted Acquisition, in each case after giving effect to such Permitted Acquisition (x) Total Liquidity shall be at least $275,000,000 and (y) including in such computation the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) Consolidated EBITDA of such Person, to the extent that provided in the acquisition includes definition of Consolidated EBITDA, and the acquisition consolidated Indebtedness or other liabilities of Equity Interests any Subsidiary acquired in any Person that is not a Loan Party such Permitted Acquisition or that does not become a Loan Party assumed or incurred in connection with such acquisitionPermitted Acquisition), calculated on the financial statements most recently delivered to the Lenders pursuant to Section 8.3.1 [Quarterly Financial Statements] or of assets by any Restricted Subsidiary that is not a Loan Party, 8.3.2 [Annual Financial Statements] and as though such acquisition shall be subject had occurred at the beginning of the four-quarter period covered thereby, as evidenced by a certificate of an Authorized Officer of the Borrowing Agent delivered to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to Administrative Agent demonstrating such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)compliance; and
(ivG) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries Parent shall deliver to the Administrative Agents Agent at least five (5) Business Days before or contemporaneously with the consummation of such Permitted Acquisition: Acquisition (1or such later date as the Administrative Agent may agree in its discretion) a certificate of (I) all relevant financial information with respect to the Borrower in substantially Person or assets being acquired provided to the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with Loan Party or Subsidiary thereof by the Financial Covenants and (y) compliance with Person being acquired or the applicable requirements of clauses (b)(i)Person selling such assets, (iiII) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any material agreements entered into or proposed to be entered into by the Borrower Loan Parties or any Restricted Subsidiary their Subsidiaries in connection with such Permitted Acquisition Acquisition, including any purchase or merger agreement, and such (III) all other information about related to such Person or its assets, and Permitted Acquisition as reasonably requested by the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;Agent.
(ciii) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, Notwithstanding the requirements of Section 8.2.6
clause (aii) are complied withabove, the TTI Acquisition shall be deemed a Permitted Acquisition, provided that (A) the TTI Acquisition shall be consummated no later than December 31, 2018, (B) the Parent shall deliver to the extent applicable;
Administrative Agent at least three (d3) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to Business Days before the consummation of the Take-In Transaction, any acquisition of Receivables from CCR TTI Acquisition (or any of such later date as the Administrative Agent may agree in its Subsidiaries in accordance with discretion) all 111 information required under Section 8.2.8(o8.2.6(ii)(G) [Affiliate Transactions] shall be permitted; and
and (gC) such other information relating to the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on TTI Acquisition as the terms set forth thereinAdministration Agent may reasonably request.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests assets or capital stock of another any other Person); provided that:
(a) (i) any Restricted Subsidiary Loan Party other than the Borrower may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a another Loan Party which is wholly-owned by one or more of the surviving entity, other Loan Parties;
(ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and or any other Person resulting from such division shall be Subsidiary of a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Partymay acquire, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xA) Equity Interests all or substantially all of the ownership interests of another Person, Person or (yB) all or substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that that, each of the following requirements is met:
(iA) if a Loan Party is acquiring the ownership interests in such Person, such Person shall, unless not required by Section 7.2.8 [Subsidiaries, Partnerships and Joint Ventures], execute a Guarantor Joinder and such other documents required by Section 10.13 [Joinder of Guarantors] and join this Agreement as a Guarantor pursuant to Section 10.13 [Joinder of Guarantors] within thirty (30) days after the date of such Permitted Acquisition (or such later date as agreed to by the Administrative Agent in its reasonable discretion);
(B) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;; and
(iiC) after giving effect to such Permitted Acquisitionin the case of a merger or consolidation involving a Loan Party, (x) Total Liquidity a Loan Party shall be at least $275,000,000 the continuing and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;surviving entity; and
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted an Excluded Subsidiary that is not a Loan PartyMaterial Subsidiary may dissolve, liquidate and wind-up its affairs, so long as such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amountdissolution, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition winding-up could not reasonably be expected to effect such Disposition; provided that result in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinMaterial Adverse Change.
Appears in 1 contract
Samples: Credit Agreement (MSA Safety Inc)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise, all or substantially all of the Equity Interests assets or capital stock of another any other Person); , provided that:
(a1) upon prior written notice to the Administrative Agent, any Subsidiary of any of the Borrowers (iexcept for the Borrowers) any Restricted Subsidiary may consolidate with or merge into any other Restricted or sell, transfer, lease or otherwise dispose of all or substantially all of its assets to a Borrower or a wholly-owned Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation Borrower if such Borrower or merger involving a Loan Party, a Loan Party is wholly-owned Subsidiary shall be the surviving entitycorporation and if, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party immediately after giving effect to such division and transaction, no condition or event shall exist which constitutes an Event of Default or Potential Default; provided however, if such Subsidiary of a Borrower is a Guarantor, it may consolidate with or merge into or sell, transfer, lease or otherwise dispose of all or substantially all of its assets only with or to another Loan Party;
(2) upon prior written notice to the Administrative Agent, any assets Subsidiary of a Borrower may dissolve or other property held by merge out of existence if such Subsidiary is an Inactive Subsidiary; and
(3) any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Partymay acquire, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xA) Equity Interests some or all of the ownership interests of another Person, Person or (yB) substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that each of the following requirements is met:
(i) such Permitted Acquisition is permitted under the Senior Secured Note Indenture as in effect March 8, 2011;
(ii) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(iiiii) the Undrawn Availability shall be greater than or equal to twenty percent (20%) of the Maximum Revolving Advance Amount immediately after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent ; provided that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party assets acquired in connection with the Permitted Acquisition may not be included in such acquisition, or of calculation unless such assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be have been subject to Section 8.2.4 [Loans a field examination, in form and Investments] (without giving effect substance satisfactory to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); andAdministrative Agent;
(iv) if the Consideration Loan Parties are acquiring the ownership interests in such Person, such Person shall execute a Guarantor Joinder and join this Agreement as a Guarantor pursuant to be paid Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] on or before the date of such Permitted Acquisition;
(v) the Loan Parties, such Person and its owners, as applicable, shall grant Liens to the Administrative Agent in the assets acquired, to the extent they constitute Collateral of such Person, and otherwise comply with Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] on or before the date of such Permitted Acquisition;
(vi) the business acquired, or the business conducted by the Restricted Subsidiaries for such Permitted Acquisition exceeds Person whose ownership interests are being acquired, as applicable, shall be substantially the Threshold Amount, same as one or more line or lines of business conducted by the Restricted Subsidiaries Loan Parties and shall comply with Section 8.2.10 [Continuation of or Change in Business];
(vii) the Loan Parties shall deliver to the Administrative Agents Agent at least five (5) Business Days before such Permitted Acquisition a pro forma Borrowing Base Certificate demonstrating that after giving effect to such Permitted Acquisition and any Loans outstanding on the date of or contemporaneously made simultaneously with such Permitted Acquisition: (1) a certificate of acquisition, demonstrating that the Borrower Borrowers are in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with Section 8.2.20 [Minimum Undrawn Availability];
(viii) the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) Loan Parties shall deliver to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, Agent at least five (5) Business Days before such Permitted Acquisition copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such Permitted Acquisition and shall deliver to the Administrative Agent such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive assets as any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business Loan Party may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinreasonably require.
Appears in 1 contract
Samples: Credit Agreement (Country Fair Inc)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower No Loan Party shall, nor shall not, and shall not cause or any Loan Party permit any Restricted Subsidiary of its Subsidiaries to, (x) dissolve, liquidate or wind-up its affairs, or (y) become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including acquire by acquisition purchase, lease or otherwise all or substantially all of the assets or Equity Interests of another Person)any other Person or group of related Persons; provided thatexcept:
(a) [reserved];
(b) any Subsidiary may combine, merge or consolidate with or into (i) any Restricted Loan Party; provided, that a Loan Party (or the Borrower, if the Borrower is a party) shall be the continuing or surviving Person, and (ii) any one or more other Subsidiaries;
(c) any Subsidiary may consolidate Dispose of all or merge into any other Restricted Subsidiary substantially all of its assets (upon voluntary liquidation or acquire Equity Interests in any Restricted otherwise) to another Subsidiary; provided provided, that if the transferor in the case of such a consolidation or merger involving transaction is a Loan Party, a Loan Party is then the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving transferee must be a Loan Party, ;
(1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2d) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan PartyParty may dissolve, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets liquidate or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationwind-up its affairs, (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
as long as (i) no Potential Default or Event of Default shall exist immediately prior to would result therefrom and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted AcquisitionSubsidiary dissolves, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party liquidates or that does not become a Loan Party in connection with such acquisition, winds-up into another Subsidiary or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidationLoan Party may dissolve, mergerliquidate or wind-up its affairs, consolidation as long as (i) no Event of Default exists or acquisition of any Restricted Subsidiary with would result therefrom and (ii) such Loan Party dissolves, liquidates or winds-up into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;Loan Party; and
(f) prior any Loan Party and any Subsidiary may enter into any transactions permitted under Section 7.5 or Section 7.8. Any reference in this Section 7.7 or in Section 7.8 to the consummation of the Take-In Transactiona combination, any acquisition of Receivables from CCR merger, consolidation, Disposition, dissolution, liquidation or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] transfer shall be permitted; and
deemed to apply to a Division of or by a limited liability company, or an allocation of assets to a series of limited liability companies (gor the unwinding of such a division or allocation) the transactions permitted by Section 8.2.4(v) [Investments] as if it were a combination, merger, consolidation, Disposition, dissolution, transfer or similar term, as applicable, to of or with a separate Person. Any Division of a limited liability company shall be permitted on the terms set forth thereinconstitute a separate Person hereunder (and each Division of any limited liability company that is a like term shall also constitute such a Person or entity).
Appears in 1 contract
Samples: Credit Agreement (Shenandoah Telecommunications Co/Va/)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
(i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.8.2.4
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests Capital Stock of another Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets all or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or constituting a business unit, division, product line or line of business of another Person; provided that, subject to Section 1.8 in connection with a Limited Condition Acquisition:
(i) so long as no Event of Default shall exist or arise after giving effect thereto (a) any Loan Party may consolidate or merge into another Loan Party which is wholly-owned by one or more of the other Loan Parties or may transfer its assets to a Loan Party and thereafter be dissolved, (b) any Foreign Subsidiary may consolidate or merge into (x) a Loan Party so long as such Loan Party is the surviving Person in such consolidation or merger or (y) another Foreign Subsidiary; provided that, if such consolidation or merger involves the Borrower, the Borrower shall survive such merger or consolidation, and (c) a Foreign Subsidiary may transfer its assets to a Loan Party or other Foreign Subsidiary and thereafter be dissolved;
(ii) any Loan Party may acquire (I) all or substantially all of the Capital Stock of another Person or (II) all or substantially all the assets of another Person or all or substantially all of the assets constituting a business unit, division, product line or division line of another Person or (z) the material assets business of another Person (each, a each “Permitted Acquisition”); , provided that each of the following requirements is met:
(ia) in the case of any purchase or other acquisition of Capital Stock in a Person, such Person will either (x) be merged or consolidated into a Loan Party with such Loan Party being the surviving entity or (y) be a wholly-owned Subsidiary (including as a result of a merger or consolidation between any Subsidiary and such Person) or in the case of any purchase or other acquisition of other assets, such assets will be owned by a Subsidiary of the Borrower;
(b) the Borrower shall, and shall cause each Subsidiary to, comply with Section 8.1.12 [Additional Collateral; Joinder of Subsidiaries] and Section 8.2.9 [Subsidiaries and Partnerships] in accordance the terms therewith;
(c) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and such Permitted Acquisition was not preceded by or consummated pursuant to, an unsolicited tender offer or proxy contest initiated by or on behalf of the Borrower or any Subsidiary;
(d) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as, similar to or a reasonable extension, development or expansion of or ancillary to one or more line or lines of business conducted by the Loan Parties and their Subsidiaries and there shall not be a breach of 8.2.10 [Continuation of or Change in Business] after giving effect to such acquisition;
(e) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(iif) the Borrower shall demonstrate that the Loan Parties shall have, after giving effect to any Indebtedness associated with such Permitted Acquisition, a pro forma Secured Debt Net Leverage Ratio that is not greater than 0.25 less than the Secured Debt Net Leverage Ratio required for such period under 8.2.15 [Maximum Secured Debt Net Leverage Ratio] (after giving effect, if applicable, to any increase in the maximum permitted Secured Debt Net Leverage Ratio in connection with any Eligible Step-Up Acquisition);
(g) the Borrower shall demonstrate that the Loan Parties shall have, after giving effect to such Permitted AcquisitionAcquisition and any Loans associated therewith, Liquidity of not less than Fifteen Million Dollars (x) Total Liquidity shall be at least $275,000,000 and 15,000,000);
(yh) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before Agent prior to the closing thereof (or contemporaneously such later date as the Administrative Agent may agree to) (i) all relevant financial information with respect to the Person or assets being acquired provided to the Loan Party by the Person being acquired or the Person selling such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants assets and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any material agreements entered into or proposed to be entered into by the Borrower Loan Parties or any Restricted Subsidiary their Subsidiaries in connection with such Permitted Acquisition and such all other information about related to such Person or its assets, and Permitted Acquisition as reasonably requested by the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permittedAgent; and
(gi) the transactions permitted Borrower shall deliver to the Lenders such other information and documentation as may reasonably be requested by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinAdministrative Agent or any Lender for purposes of compliance by the Administrative Agent or such Lender with applicable laws (including without limitation the USA Patriot Act and other “know your customer” and anti-money laundering rules and regulations), and any policy or procedure implemented by the Administrative Agent or such Lender to comply therewith.
Appears in 1 contract
Samples: Credit Agreement (Vertex, Inc.)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect or acquire all or substantially all of a business or division or make of any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another other Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, entity and (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionentity;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests all of the ownership interests of another PersonPerson that becomes a Restricted Subsidiary, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person Person, or (z) any of the material assets Specified Other Assets, or Permitted Other Undivided Interests (including any increase in the ownership percentage of another Person Permitted Other Undivided Interests) (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
(i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall the amount of unused Revolving Credit Commitments that could be drawn without breaching the Financial Covenants must be greater than or equal to at least $275,000,000 and 10% of the aggregate outstanding Revolving Credit Commitments at such time;
(yiii) after giving effect to such Permitted Acquisition, the Borrower and its Restricted Subsidiaries shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iiiiv) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(ivv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents Agent before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents Agent and not subject to confidentiality obligations owed to any PersonPerson other than CEI or any of its Subsidiaries, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents Agent may, to the extent they receive it receives any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger merger, consolidation or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person)division; provided that:
(a) (i) any Restricted Subsidiary Loan Party other than the Borrower may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a another Loan Party which is wholly-owned by one or more of the other Loan Parties or the Borrower;
(b) any Subsidiary may merge with (i) the Borrower, provided further that the Borrower shall be the continuing or surviving entityperson, or (ii) any Restricted Subsidiary may consolidate one or merge into more other Subsidiaries, provided further that when any Guarantor is merging with another Subsidiary, the Borrower; provided that Guarantor shall be the Borrower is the continuing or surviving entity and Person;
(iiic) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (Party may liquidate or dissolve if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
(i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate Responsible Officer of the Borrower determines in substantially good faith that such liquidation or dissolution is in the form best interests of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants Borrower and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent could not reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed be expected to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information disadvantageous to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided further that holds only de minimis assets and if the transferor in such transaction is not conducting any material business may dissolve;a Guarantor, then the transferee must either be the Borrower or a Guarantor; and
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR Borrower or any of its Subsidiaries other Loan Party may merge with another Person in accordance connection with Section 8.2.8(oa Permitted Acquisition so long as the Borrower (or such Loan Party if the Borrower is not a party to such merger) [Affiliate Transactions] shall be permitted; and
(g) is the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereincontinuing or surviving entity.
Appears in 1 contract
Samples: Credit Agreement (3d Systems Corp)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person)Acquisition; provided thatprovided:
(a) (i) that any Restricted Subsidiary Loan Party may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, provided that if any such consolidation or merger involves (x) a Loan Party is Borrower, a Borrower shall survive such merger or consolidation and (y) the surviving entityParent, the Parent shall survive such merger or consolidation;
(ii) any Restricted Loan Party or Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and make an Acquisition (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that each of the following requirements is met:
A. in the case of any purchase or other acquisition of Equity Interests in a Person, such Person will either (ix) be merged or consolidated into a Group member with such Group member being the surviving entity or (y) be a wholly-owned Subsidiary (including as a result of a merger or consolidation between any Subsidiary and such Person) or in the case of any purchase or other acquisition of other assets, such assets will be owned by a Group member;
B. the Loan Parties shall, and shall cause each Subsidiary created in connection with such Acquisition to, comply with Section 8.1.12 [Joinder of Subsidiaries] and Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] on or before the thirtieth (30th) day after the date of such Permitted Acquisition (or, if the Administrative Agent consents, such later period as shall be agreed by the Administrative Agent);
C. the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and such Permitted Acquisition was not preceded by or consummated pursuant to, an unsolicited tender offer or proxy contest initiated by or on behalf of the Parent or any Subsidiary;
D. the business acquired, or the business conducted by the Person whose Equity Interests are being acquired, as applicable, shall not result in a breach of Section 8.2.10 [Continuation of or Change in Business];
E. no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) F. if such Acquisition is a Material Acquisition, the Borrowers shall demonstrate that the Loan Parties shall have, after giving effect to such Permitted Acquisition, Acquisition and any Indebtedness of the Parent and its Subsidiaries associated therewith (xI) Total Liquidity shall be at least of not less than Twenty Five Million Dollars ($275,000,000 25,000,000) as of the date of such Acquisition and (yII) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person pro forma Net Leverage Ratio that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to greater than the Net Leverage Ratio then required under Section 8.2.4 8.2.15 [Loans and InvestmentsMaximum Net Leverage Ratio] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amountprovided that, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or mergerany Step-Up Acquisition for which the Loan Parties have notified the Administrative Agent in writing of their exercise of the right under such Section to temporarily increase the maximum Net Leverage Ratio, the requirements of Net Leverage Ratio then required under Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.8.2.15 DMFIRM #404836892 v17 92
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, entity and (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionentity;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, Person or (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
(i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial CovenantsCovenants and the Borrower shall deliver to the Administrative Agent prior to the making of any such Permitted Acquisition an Officer’s Certificate certifying compliance with the requirements of this subclause (ii) and setting forth calculations in reasonable detail showing such compliance;
(iii) all assets acquired pursuant to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets this clause (b) shall be acquired by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject and each Person acquired pursuant to Section 8.2.4 [Loans and Investments] (without giving effect to this clause (cb) thereof) and shall become a Guarantor, in each case, within the aggregate Consideration attributable timeframe set forth in Section 8.1.9 [Additional Guarantors] with respect to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)the acquisition of a Subsidiary; and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents Agent before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iiiii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such Permitted Acquisition and such other information about such Person or its assetsassets as the Administrative Agent may reasonably require, and the Administrative Agents mayAgent shall, to the extent they receive it receives any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) [reserved];
(d) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a8.2.6(a) [Liquidations, Mergers, Consolidations, Acquisitions] are complied with, to the extent applicable;; and
(de) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 1 contract
Samples: Revolving Credit Facility (CNX Midstream Partners LP)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests Capital Stock of another Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets all or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or constituting a business unit, division, product line or line of business of another Person; provided that:
(i) so long as no Event of Default shall exist or arise after giving effect thereto (a) any Loan Party may consolidate or merge into another Loan Party which is wholly-owned by one or more of the other Loan Parties or may transfer its assets to a Loan Party and thereafter be dissolved, (b) any Foreign Subsidiary may consolidate or merge into (x) a Loan Party so long as such Loan Party is the surviving Person in such consolidation or merger or (y) another Foreign Subsidiary; provided that, if such consolidation or merger involves the Borrower, the Borrower shall survive such merger or consolidation, and (c) a Foreign Subsidiary may transfer its assets to a Loan Party or other Foreign Subsidiary and thereafter be dissolved;
(ii) any Loan Party may acquire (I) all or substantially all of the Capital Stock of another Person or (II) all or substantially all the assets of another Person or all or substantially all of the assets constituting a business unit, division, product line or division line of another Person or (z) the material assets business of another Person (each, a each “Permitted Acquisition”); , provided that each of the following requirements is met:
(ia) in the case of any purchase or other acquisition of Capital Stock in a Person, such Person will either (x) be merged or consolidated into a Loan Party with such Loan Party being the surviving entity or (y) be a wholly-owned Subsidiary (including as a result of a merger or consolidation between any Subsidiary and such Person) or in the case of any purchase or other acquisition of other assets, such assets will be owned by a Subsidiary of the Borrower;
(b) the Borrower shall, and shall cause each Subsidiary to, comply with Section 8.1.12[Additional Collateral; Joinder of Subsidiaries] and Section 8.2.9 [Subsidiaries and Partnerships] on or before thirty (30) days after the consummation of such Permitted Acquisition (or, if the Administrative Agent consents, such longer period thereafter);
(c) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and such Permitted Acquisition was not preceded by or consummated pursuant to, an unsolicited tender offer or proxy contest initiated by or on behalf of the Borrower or any Subsidiary;
(d) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as or similar to one or more line or lines of business conducted by the Loan Parties and their Subsidiaries and there shall not be a breach of 8.2.10[Continuation of or Change in Business] after giving effect to such acquisition;
(e) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(iif) the Borrower shall demonstrate that the Loan Parties shall have, after giving effect to any Indebtedness associated with such Permitted Acquisition, a pro forma Net Leverage Ratio that is not greater than 0.25 less than the Net Leverage Ratio required for such period under 8.2.15 [Maximum Net Leverage Ratio];
(g) the Borrower shall demonstrate that the Loan Parties shall have, after giving effect to such Permitted AcquisitionAcquisition and any Loans associated therewith, Liquidity of not less than Fifteen Million Dollars (x) Total Liquidity shall be at least $275,000,000 and 15,000,000);
(yh) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents Agent at least five (5) Business Days before or contemporaneously with the consummation of such Permitted Acquisition: Acquisition (1or such later date as the Administrative Agent may agree to) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, all relevant financial information with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) respect to the extent reasonably requested Person or assets being acquired provided to the Loan Party by the Person being acquired or the Person selling such assets. The Borrower shall deliver to the Administrative Agent at least five (5) Business Days (or such shorter period as such be agreed by the Administrative Agents and not subject to confidentiality obligations owed to any Person, Agent) before such Permitted Acquisition copies of any material agreements entered into or proposed to be entered into by the Borrower Loan Parties or any Restricted Subsidiary their Subsidiaries in connection with such Permitted Acquisition and such all other information about related to such Person or its assets, and Permitted Acquisition as reasonably requested by the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permittedAgent; and
(gi) the transactions permitted Borrower shall deliver to the Lenders such other information and documentation as may reasonably be requested by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinAdministrative Agent or any Lender for purposes of compliance by the Administrative Agent or such Lender with applicable laws (including without limitation the USA Patriot Act and other “know your customer” and anti-money laundering rules and regulations), and any policy or procedure implemented by the Administrative Agent or such Lender to comply therewith.
Appears in 1 contract
Samples: Credit Agreement (Vertex, Inc.)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower No Loan Party shall, nor shall not, and shall not cause or any Loan Party permit any Restricted Subsidiary of its Subsidiaries to, (i) dissolve, liquidate or wind-up its affairs, or (ii) become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (ziii) enter into any agreement, contract, binding commitment or other arrangement providing for any Acquisition, or take any action to solicit the tender of clause (b) below (including by acquisition of the Equity Interests of another Person)securities or proxies in respect thereof in order to effect any Acquisition; provided that:
(a) any Subsidiary may merge with (i) any Restricted Subsidiary may consolidate the Parent or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; the Borrower, provided that in the case of a consolidation Parent or merger involving a Loan Partythe Borrower shall be the continuing or surviving Person, a Loan Party is the surviving entity, or (ii) any Restricted Subsidiary may consolidate one or merge into the Borrower; more other Subsidiaries, provided that when any Guarantor is merging with another Subsidiary, the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division Guarantor shall be a Loan Party after giving effect to such division and (2) any assets the continuing or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionsurviving Person;
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent or the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of to another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”)Subsidiary; provided that each if the transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or a Guarantor;
(c) any Loan Party or any Subsidiary of any Loan Party may enter into any agreement, contract, binding commitment or other arrangement providing for any Acquisition, or take any action to solicit the following requirements is met:
tender of securities or proxies in respect thereof in order to effect any Acquisition; so long as (i) no Potential Default or Event of Default shall exist have occurred and be continuing either immediately prior to and or immediately after giving effect to such Permitted Acquisition and, if the Cost of Acquisition is in excess of $150,000,000, the Parent shall have furnished to the Administrative Agent (A) pro forma historical financial statements as of the end of the most recently completed fiscal year and most recent interim fiscal quarter, if applicable giving effect to such Acquisition and (B) a Compliance Certificate prepared on a historical pro forma basis as of the most recent date for which financial statements have been furnished pursuant to Section 6.1(a) or (b) (or if no such financial statements have been furnished, from the date of the financial statements referred to in Section 5.10(b)) giving effect to such Acquisition;
, which certificate shall demonstrate that no Default or Event of Default would exist immediately after giving effect thereto, (ii) the Person acquired shall be a Subsidiary, or be merged into the Parent or a Subsidiary, immediately upon consummation of the Acquisition (or if assets are being acquired, the acquirer shall be the Parent or a Subsidiary), and (iii) after giving effect to such Permitted Acquisition, the aggregate Costs of Acquisition incurred in any fiscal year with respect to all Acquisitions having an individual Cost of Acquisition exceeding $25,000,000 shall not exceed $150,000,000 (xon a noncumulative basis, with the effect that amounts not incurred in any fiscal year may not be carried forward to a subsequent period) Total Liquidity shall be at least $275,000,000 unless, both immediately before and immediately after making such Acquisition, the Debt to Capitalization Ratio is less than 35%; and
(yd) the Parent, the Borrower shall be or any Subsidiary may merge with a Person in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) order to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets consummate an Acquisition permitted by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amountabove, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation the Parent or mergerthe Borrower, that the requirements of Section 8.2.6
(a) are complied with, to Parent or the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and Borrower is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinsurviving entity.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Seaboard Corp /De/)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Unregulated Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests assets or capital stock of another any other Person); , provided that:
(a) (i) any Restricted Subsidiary Loan Party other than the Borrower may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a another Loan Party which is wholly-owned by one or more of the surviving entity, other Loan Parties,
(ii) any Restricted Unregulated Subsidiary of the Borrower that is not a Loan Party may dissolve, liquidate or wind-up its affairs or may consolidate or merge into the Borrower or any other Unregulated Subsidiary of the Borrower; , provided that if any such merger or consolidation is with a Loan Party, the Borrower is the entity surviving entity and or resulting from such merger or consolidation shall be a Loan Party, and
(iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and or any other Person resulting from such division shall be Subsidiary of a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Partymay acquire, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such division;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidationmerger, (xa) Equity Interests all of the ownership interests of another Person, Person or (yb) substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, each a “Permitted Acquisition”); , provided that each of the following requirements is met:
(ia) if the Loan Parties are acquiring the ownership interests in such Person, such Person shall, if required to be a Guarantor under Section 8.2.8 [Subsidiaries], execute a Guarantor Joinder and join this Agreement as a Guarantor in accordance with Section 8.1.15 [Joinder of Guarantors];
(b) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(c) the business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be engaged in a Permitted Business;
(d) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in including without limitation pro forma compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 8.2.16 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)Maximum Leverage Ratio]; and
(ive) if the Consideration to be paid promptly upon written request therefor by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold AmountAdministrative Agent, the Restricted Subsidiaries Loan Parties shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, Agent copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such a Permitted Acquisition and such other information about such Person or its assets, and the target thereof as the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business Agent may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinreasonably request.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries (other than Excluded Subsidiaries) to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests assets or capital stock of another any other Person); provided that:except
(a) (i) any Restricted Subsidiary may consolidate transactions permitted under Section 8.2.7 [Disposition of Assets or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, Subsidiaries];
(ii) any Restricted Subsidiary that a Borrower may merge or consolidate with or into another Borrower or another Loan Party may merge or consolidate with or into the Borrower; provided that the Borrower is the surviving entity and another Loan Party;
(iii) any Restricted Subsidiary of a Loan Party may effect merge with and into a division; provided Borrower and any Subsidiary of a Loan Party that (x) in the event of any division involving is not a Borrower may merge with and into a Loan Party, ;
(1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2iv) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by Subsidiary of a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary Borrower that is not a Loan PartyParty may be liquidated, (1) wound-up or dissolved; provided that The Finish Line MA, Inc. and Spike's Holding, LLC may be liquidated, wound-up or dissolved at any time so long as any and all assets of such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be entities are transferred to another Loan Party prior to, or as a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionresult of, the dissolution;
(bv) that any merger or consolidation effected to cause the Borrower or reincorporation of a Subsidiary of a Loan Party in the State of Indiana shall be permitted; and
(vi) any Restricted Subsidiary Loan Party may acquire acquire, whether by purchase or by merger or consolidationmerger, (xA) Equity Interests all of the ownership interests of another Person, Person or (yB) substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, a “each an "Permitted Acquisition”"); , provided that each of the following requirements is met:
(iA) no Potential Default or Event of Default or Potential Default shall exist immediately have occurred and be continuing and no Event of Default would result from such Permitted Acquisition or the incurrence of any Indebtedness in connection therewith;
(B) the businesses being acquired shall be substantially similar to the businesses or activities engaged in by the Borrowers on the Closing Date or any businesses or activities which are substantially similar, related or incidental thereto;
(C) the Board of Directors or other equivalent governing body of the businesses being acquired shall have approved such acquisition, or to the extent that they are not required to approve such acquisition, they have not opposed such acquisition;
(D) prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted AcquisitionAcquisition and the incurrence or assumption of any Indebtedness permitted by Section 8.2.1 [Indebtedness] in connection therewith, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis pro forma basis using historical financial statements obtained from the seller (with the Financial Covenants;
(iii) EBITDAR adjusted solely to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party reflect transaction expenses arising from or that does not become a Loan Party in connection with such acquisitionthe applicable Permitted Acquisition), or of assets broken down by any Restricted Subsidiary that is not a Loan Partyfiscal quarter in the Parent's reasonable judgment, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) as if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person incurrence or its assetsassumption of Indebtedness had occurred on the first day of the twelve‑month period ending on the last day of the Parent's most recently completed fiscal quarter, and the Administrative Agents may, to Parent would have been in compliance with the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 financial covenants in Sections 8.2.18 [DispositionsMaximum Leverage Ratio] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein8.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving of a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person all Persons resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionParties;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, Person or (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
(i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial CovenantsCovenants and the Borrower shall deliver to the Administrative Agent prior to the making of any such Permitted Acquisition an Officer’s Certificate certifying compliance with the requirements of this subclause (ii) and setting forth calculations in reasonable detail showing such compliance;
(iii) all assets acquired pursuant to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets this clause (b) shall be acquired by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject and each Person acquired pursuant to Section 8.2.4 [Loans and Investments] (without giving effect to this clause (cb) thereof) and shall become a Guarantor, in each case, within the aggregate Consideration attributable timeframe set forth in Section 8.1.9 [Additional Guarantors] with respect to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)the acquisition of a Subsidiary; and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents Agent before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iiiii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary such Loan Parties in connection with such Permitted Acquisition and such other information about such Person or its assetsassets as the Administrative Agent may reasonably require, and the Administrative Agents mayAgent shall, to the extent they receive it receives any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) [reserved];
(d) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a8.2.6(a) [Liquidations, Mergers, Consolidations, Acquisitions] are complied with, to the extent applicable;; and
(de) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall Company covenants that it will not, and shall will not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests assets or capital stock of another any other Person); provided that, except:
(a) (i) any Restricted Subsidiary Transaction Party other than the Company may consolidate or merge into any another Transaction Party which is wholly-owned by one or more of the other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, Transaction Parties;
(ii) any Restricted Subsidiary of a Transaction Party may consolidate be liquidated, wound up or merge into dissolved, or all or any part of its business, assets or property may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to a Transaction Party which is a wholly-owned by one or more of the Borrower; provided that the Borrower is the surviving entity and other Transaction Parties;
(iii) any Restricted Subsidiary of a Transaction Party may effect a division; provided that merge into its parent upon 10 Business Days’ notice to the holders of the Notes;
(x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2iv) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and Transaction Party may merge into any other Person resulting from such division shall be Subsidiary that is not a Restricted Subsidiary after giving effect to such division and (2) any assets Transaction Party which is wholly-owned by one or more of the other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionTransaction Parties;
(bv) the Borrower or any Restricted Subsidiary Transaction Party may acquire acquire, whether by purchase or by merger or consolidationby purchase, lease or otherwise, (xa) Equity Interests of not less than ninety percent (90%) of the equity interests of another Person, Person or (yb) all or substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); , provided that each of the following requirements is met:
(i1) if such Transaction Party is acquiring the equity interests in such Person and such Person shall constitute a Domestic Subsidiary which is not a Non-Material Subsidiary after the consummation of the Permitted Acquisition, such Person shall execute a Guaranty Agreement or a joinder to the Guaranty Agreement on or before the date of such Permitted Acquisition;
(2) the Transaction Parties or such Person, if such Person shall constitute a Domestic Subsidiary which is not a Non-Material Subsidiary upon the consummation of the Permitted Acquisition, as applicable, shall grant Liens in the assets of or acquired from such Person and otherwise comply with paragraph 5L on or before the date of such Permitted Acquisition;
(3) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and, if the Transaction Parties shall use any portion of the Notes to fund such Permitted Acquisition, the Transaction Parties also shall have delivered to the holders of the Notes written evidence of the approval of the board of directors (or equivalent body) of such Person for such Permitted Acquisition;
(4) the business or assets acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be reasonably related to as one or more line or lines of business conducted by the Transaction Parties and shall comply with paragraph 6K;
(5) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii6) the Transaction Party acquiring the Person or business subject to the Permitted Acquisition shall execute and deliver to the Collateral Agent a Collateral Assignment of Contract Rights with respect to the acquisition agreement pursuant to which such Transaction Party acquires such Person or business;
(7) the Company shall demonstrate that it shall be in compliance with the covenants contained in paragraphs 6A(1) and 6A(2) hereof after giving effect to such Permitted Acquisition, Acquisition (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be including in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party such computation Indebtedness or that does not become a Loan Party in connection with such acquisition, other liabilities assumed or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary incurred in connection with such Permitted Acquisition and income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition),
(8) the aggregate consideration for all Permitted Acquisitions shall not exceed (a) $25,000,000 in any fiscal year of the Company, or (b) $75,000,000 in the aggregate; and
(9) the Transaction Parties shall deliver to the holders of the Notes (a) at least ten (10) days (or such shorter period acceptable to the Required Holders, in their sole discretion) before such Permitted Acquisition, all financial statements received respect to the Persons or assets proposed to be acquired, (b) at least ten (10) days (or such shorter period acceptable to the Required Holders, in their sole discretion) before such Permitted Acquisition, drafts of any agreements proposed to be entered into by such Transaction Parties in connection with such Permitted Acquisition, and (c) on or prior to the date of such Permitted Acquisition, execution copies of such agreements entered into by such Transaction Parties in connection with such Permitted Acquisition, and shall deliver to the holders of the Notes such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive assets as any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business Transaction Party may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinreasonably require.
Appears in 1 contract
Samples: Private Shelf Agreement (Advanced Drainage Systems, Inc.)
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower shall not, and shall not cause or permit any Restricted Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) or (z) of clause (b) below (including by acquisition of the Equity Interests of another Person); provided that:
(a) (i) any Restricted Subsidiary may consolidate or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, entity and (ii) any Restricted Subsidiary may consolidate or merge into the Borrower; provided that the Borrower is the surviving entity and (iii) any Restricted Subsidiary may effect a division; provided that (x) in the event of any division involving a Loan Party, (1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary that is not a Loan Party, (1) such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionentity;
(b) the Borrower or any Restricted Subsidiary may acquire whether by purchase or by merger or consolidation, (x) Equity Interests of another Person, (y) substantially all of the assets of another Person or the assets constituting a business or division of another Person or (z) the material assets of another Person (each, a “Permitted Acquisition”); provided that each of the following requirements is met:
(i) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted Acquisition, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenants;
(iii) to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party or that does not become a Loan Party in connection with such acquisition, or of assets by any Restricted Subsidiary that is not a Loan Party, such acquisition shall be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof); and
(iv) if the Consideration to be paid by the Restricted Subsidiaries for such Permitted Acquisition exceeds the Threshold Amount, the Restricted Subsidiaries shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) a certificate of the Borrower in substantially the form of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) compliance with the applicable requirements of clauses (b)(i), (ii) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;; and
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR CNXC or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth therein.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. The Borrower Each of the Loan Parties shall not, and shall not cause or permit any Restricted Subsidiary of its Subsidiaries (other than Excluded Subsidiaries) to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, effect a division or make any acquisition described in subclause (y) acquire by purchase, lease or (z) of clause (b) below (including by acquisition otherwise all or substantially all of the Equity Interests assets or capital stock of another any other Person); provided that:except
(a) (i) any Restricted Subsidiary may consolidate transactions permitted under Section 8.2.7 [Disposition of Assets or merge into any other Restricted Subsidiary or acquire Equity Interests in any Restricted Subsidiary; provided that in the case of a consolidation or merger involving a Loan Party, a Loan Party is the surviving entity, Subsidiaries];
(ii) any Restricted Subsidiary that a Borrower may merge or consolidate with or into another Borrower or another Loan Party may merge or consolidate with or into the Borrower; provided that the Borrower is the surviving entity and another Loan Party;
(iii) any Restricted Subsidiary of a Loan Party may effect merge with and into a division; provided Borrower and any Subsidiary of a Loan Party that (x) in the event of any division involving is not a Borrower may merge with and into a Loan Party, ;
(1) the dividing Loan Party (if surviving) and any other Person resulting from such division shall be a Loan Party after giving effect to such division and (2iv) any assets or other property held by any Loan Party immediately prior to such division shall continue to be held by Subsidiary of a Loan Party after giving effect to such division and (y) in the event of any division involving a Restricted Subsidiary Borrower that is not a Loan PartyParty may be liquidated, (1) wound-up or dissolved; provided that The Finish Line MA, Inc. and Spike's Holding, LLC may be liquidated, wound-up or dissolved at any time so long as any and all assets of such dividing Restricted Subsidiary (if surviving) and any other Person resulting from such division shall be entities are transferred to another Loan Party prior to, or as a Restricted Subsidiary after giving effect to such division and (2) any assets or other property held by any Restricted Subsidiary immediately prior to such division shall continue to be held by a Restricted Subsidiary after giving effect to such divisionresult of, the dissolution;
(bv) that any merger or consolidation effected to cause the Borrower or reincorporation of a Subsidiary of a Loan Party in the State of Indiana shall be permitted; and
(vi) any Restricted Subsidiary Loan Party may acquire acquire, whether by purchase or by merger or consolidationmerger, (xA) Equity Interests all of the ownership interests of another Person, Person or (yB) substantially all of the assets of another Person or the assets constituting of a business or division of another Person or (z) the material assets of another Person (each, a “each an "Permitted Acquisition”"); , provided that each of the following requirements is met:
(iA) no Potential Default or Event of Default or Potential Default shall exist immediately have occurred and be continuing and no Event of Default would result from such Permitted Acquisition or the incurrence of any Indebtedness in connection therewith;
(B) the businesses being acquired shall be substantially similar to the businesses or activities engaged in by the Borrowers on the Closing Date or any businesses or activities which are substantially similar, related or incidental thereto;
(C) the Board of Directors or other equivalent governing body of the businesses being acquired shall have approved such acquisition, or to the extent that they are not required to approve such acquisition, they have not opposed such acquisition;
(D) prior to and after giving effect to such Permitted Acquisition;
(ii) after giving effect to such Permitted AcquisitionAcquisition and the incurrence or assumption of any Indebtedness permitted by Section 8.2.1 [Indebtedness] in connection therewith, (x) Total Liquidity shall be at least $275,000,000 and (y) the Borrower shall be in compliance on a Pro Forma Basis pro forma basis using historical financial statements obtained from the seller (with the Financial Covenants;
(iii) EBITDAR adjusted solely to the extent that the acquisition includes the acquisition of Equity Interests in any Person that is not a Loan Party reflect transaction expenses arising from or that does not become a Loan Party in connection with the applicable Permitted Acquisition), broken down by fiscal quarter in the Parent's reasonable judgment, as if the Permitted Acquisition and such acquisitionincurrence or assumption of Indebtedness had occurred on the first day of the twelve-month period ending on the last day of the Parent's most recently completed fiscal quarter, or of assets by any Restricted Subsidiary that is the Parent would have been in compliance with the financial covenants in Sections 8.2.18 [Maximum Leverage Ratio] and 8.2.19 [Minimum Consolidated Tangible Net Worth], and would not a Loan Party, such acquisition shall otherwise be subject to Section 8.2.4 [Loans and Investments] (without giving effect to clause (c) thereof) and the aggregate Consideration attributable to such Equity Interests or assets shall count against availability under Section 8.2.4 [Loans and Investments] (other than clause (c) thereof)in default hereof; and
(ivE) if the Consideration prior to be paid by the Restricted Subsidiaries for each such Permitted Acquisition exceeds the Threshold Amountwith a purchase price (excluding assumed liabilities but not indebtedness for borrowed money) in excess of $75,000,000, the Restricted Subsidiaries Borrowers shall deliver to the Administrative Agents before or contemporaneously with such Permitted Acquisition: (1) Agent and the Lenders a certificate from one of the Borrower in substantially Authorized Officers of Parent, demonstrating to the form reasonable satisfaction of Exhibit 8.2.6 evidencing (x) compliance, on a Pro Forma Basis, with the Financial Covenants and (y) Administrative Agent compliance with the applicable requirements of clauses subparagraph (b)(i), (iiD) and (iii) of this Section 8.2.6 and (2) to the extent reasonably requested by the Administrative Agents and not subject to confidentiality obligations owed to any Person, copies of any agreements entered into or proposed to be entered into by the Borrower or any Restricted Subsidiary in connection with such Permitted Acquisition and such other information about such Person or its assets, and the Administrative Agents may, to the extent they receive any such copies of agreements or information, provide such copies of agreements or information to the Lenders;
(c) Dispositions permitted by Section 8.2.7 [Dispositions] and any liquidation, merger, consolidation or acquisition to effect such Disposition; provided that in the case of a consolidation or merger, the requirements of Section 8.2.6
(a) are complied with, to the extent applicable;
(d) any Restricted Subsidiary that holds only de minimis assets and is not conducting any material business may dissolve;
(e) any liquidation, merger, consolidation or acquisition of any Restricted Subsidiary with or into another Restricted Subsidiary effected pursuant to the Spin-Off on or promptly following the Closing Date and in accordance with an agreement described on Schedule 8.2.8 shall be permitted;
(f) prior to the consummation of the Take-In Transaction, any acquisition of Receivables from CCR or any of its Subsidiaries in accordance with Section 8.2.8(o) [Affiliate Transactions] shall be permitted; and
(g) the transactions permitted by Section 8.2.4(v) [Investments] shall be permitted on the terms set forth thereinabove.
Appears in 1 contract
Samples: Revolving Credit Facility Credit Agreement (Finish Line Inc /In/)
