Mergers, Acquisitions, Etc. The Borrower shall not and shall not permit its Subsidiaries to consolidate with or merge into any other Person or permit any other Person to merge into it, acquire any Person as a new Subsidiary, sell all or substantially all of its assets or acquire all or substantially all of the assets of any other Person, except for the following (each, a “Permitted Acquisition”): (a) the Borrower and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all or substantially all of their assets to each other, provided that in any such merger involving the Borrower, the Borrower is the surviving Person; and (b) the Borrower or any of its Subsidiaries may acquire (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that: (i) no Default or Event of Default exists or will result after giving effect to any such acquisition; (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries); (iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower; (iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; and (v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis). (c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition of assets or sale of assets approved in writing by the Required Lenders.
Appears in 3 contracts
Samples: Credit Agreement (Fair Isaac Corp), Credit Agreement (Fair Isaac Corp), Credit Agreement (Fair Isaac Corp)
Mergers, Acquisitions, Etc. The Borrower shall not and shall not permit its Subsidiaries to consolidate with or merge into any other Person or permit any other Person to merge into it, acquire any Person as a new Subsidiary, sell all or substantially all of its assets or acquire all or substantially all of the assets of any other Person, except for the following (each, a “Permitted Acquisition”):
(a) the Borrower and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all or substantially all of their assets to each other, provided that in any such merger involving the Borrower, the Borrower is the surviving Person; and
(b) the Borrower or any of its Subsidiaries may acquire (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that:
(i) no Default or Event of Default exists or will result after giving effect to any such acquisition;
(ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; and;
(v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis); and
(vi) after giving effect to such acquisition, (A) the pro forma Total Leverage Ratio shall be less than 2.50 to 1.00 or (B) the total cash or other consideration paid or payable in cash or other property (including any assumed Indebtedness) in connection with such acquisition and all acquisitions during such fiscal year shall not exceed $100,000,000.
(c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition of assets or sale of assets approved in writing by the Required Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Fair Isaac Corp), Credit Agreement (Fair Isaac Corp)
Mergers, Acquisitions, Etc. The Borrower No Loan Party shall not and shall not permit its Subsidiaries to reorganize, recapitalize or consolidate with or merge into any other Person or permit any other Person to merge into it, acquire any Person as a new Subsidiary, sell all or substantially all of its assets Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following (each, a “Permitted Acquisition”):following:
(ai) (A) the Borrowers and the other Loan Parties (other than Parent or Commercial Barge Line Company) may merge with each other; provided that (A) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to any such merger and (B) in any such merger involving a Borrower and its wholly-owned Subsidiaries another Loan Party (other than another Borrower), such Borrower is the surviving Person; and (B) Parent and Commercial Barge Line Company may merge with each other and the Borrower’s wholly-owned Subsidiaries American Barge Line Company may sell all or substantially all of their assets to each other, merge with and into Commercial Barge Line Company; provided that (A) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to any such merger and (B) in any such merger involving the BorrowerParent, the Borrower Parent is the surviving Person; and;
(bii) the Acquisitions by a Borrower or a Guarantor of any Person or the assets of its Subsidiaries may acquire (by merger or otherwise) any a Person as a new Subsidiary or acquire of all or substantially all of the assets of any other Person or identifiable business unit or division of any other Person (eachin each case, a the “Proposed Target”); provided that, unless otherwise agreed to in writing by the Administrative Agent (with the written approval of the Required Lenders) with respect to any of the below requirements in connection with a particular acquisition:
(iA) no No Default or Event of Default exists has occurred and is continuing on the date of, or will result after giving effect to to, any such acquisition;
acquisition (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower actually and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if );
(B) The property acquired (or the property of the Proposed Target had been a Subsidiary of the Borrower Target) in such acquisition is ancillary to, reasonably related to, or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agentused or useful in, the Borrower would have been in compliance with same or a similar line of business as the financial covenants set forth in Section 7.1 Borrowers and Section 7.2; andtheir Subsidiaries;
(vC) the Board of Directors or other governing body The acquisition of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., i.e. on a non-hostile basis).
) (c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition of assets or sale of assets approved unless otherwise agreed to in writing by the Required LendersLenders with respect to a particular acquisition as noted above);
(D) The acquisition of the Proposed Target shall be consummated, in all material respects, in accordance with all applicable laws and all applicable Governmental Authorizations;
(E) For each acquisition where the total consideration exceeds $50,000,000, the Borrowers shall have delivered to the Administrative Agent subject to Section 8.10, (1) (x) financial statements of the subject of such acquisition that is a separate Person (or is an acquisition of all the assets of a Person) to the extent available, but in no event for less than the immediately preceding twelve months or (y) in the case of an acquisition of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets or, if no such financial statements are available, an appraisal or other valuation of the assets to be acquired, (2) pro forma financial statements reflecting the combined projected performance of the Loan Parties during the 12 months immediately following consummation of such transaction, certified to the Administrative Agent and the Lenders as being the good faith projections of the Borrowers, in form and detail reasonably acceptable to the Administrative Agent, which projections shall show that such acquisition will not result in any Default or Event of Default hereunder and (3) such additional reasonable information as requested by the Lenders regarding the acquisition;
(F) The Borrowers shall be in compliance with the financial covenants set forth in this Agreement on a pro forma basis after giving effect to the acquisition of the Proposed Target as if such acquisition occurred on the last day of the fiscal quarter most recently ended;
(G) The Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance as described in clause (F) above;
(H) If a Proposed Target is organized or domiciled under the law of any jurisdiction outside the United States, or a Proposed Target has more than 10% of its assets or annual revenues based in or from outside of the United States (as determined from the most recently available financial information for the Proposed Target), then such Proposed Target’s Adjusted EBITDA shall be discounted for covenant compliance to the extent the Administrative Agent cannot obtain perfected liens on its assets;
(I) The Proposed Target shall be owned directly by the Borrowers or, if the Proposed Target remains a separate entity, be a wholly-owned Subsidiary of a Borrower after giving effect to the acquisition;
(J) The Administrative Agent and the Security Trustee (as applicable) shall hold a perfected, first priority security interest in and lien on all of the assets acquired by a Borrower or a Guarantor in such transaction (including but not limited to the assets of the Proposed Target, subject only to Permitted Liens and, if the Proposed Target survives such transaction as a separate Subsidiary, any Equity Securities in the Proposed Target to the extent required by Section 5.01(i)); and
(K) If such Proposed Target remains a separate Subsidiary, all action required of the Loan Parties under Section 5.01(i) shall be completed substantially concurrently with the consummation of such acquisition or, if requested by the Administrative Agent, such Proposed Target (and any Subsidiary of the Proposed Target acquired as part of the acquisition) shall be a party to the Credit Documents as a borrower substantially concurrently with the consummation of such acquisition pursuant to documentation in form and substance satisfactory to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (American Commercial Lines Inc.), Credit Agreement (American Commercial Lines Inc.)
Mergers, Acquisitions, Etc. The Neither the Borrower shall not and shall not permit nor any of its Subsidiaries to shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into itthem, acquire any Person as a new Subsidiary, sell all or substantially all of its assets Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following (each, a “Permitted Acquisition”):following:
(a) the The Borrower and its wholly-owned Subsidiaries may amalgamate or merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all or substantially all of their assets with any other Person permitted to each otherbe acquired as a new Subsidiary under clause (b) below, provided that (i) (A) in any such amalgamation or merger involving the Borrower, the Borrower is the surviving Person; andPerson and (B) in any such amalgamation or merger involving a Subsidiary Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Subsidiary Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Default has occurred and is continuing on the date of, or will result after giving effect to, any such amalgamation or merger;
(b) the The Borrower or any of and its Subsidiaries may acquire (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all of the assets of any other Person (eachor line of business or division of any Person, a “Proposed Target”); provided that:
(i) no No Default or Event of Default exists has occurred and is continuing on the date of, or will result after giving effect to to, any such acquisition;
(ii) the Proposed Target Such Person (or line or division) is not primarily engaged in a any business or activity reasonably related to substantially different from (A) the present business of the Borrower and its Subsidiaries or any Subsidiary (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed other than any such acquired Subsidiary) or (B) any business reasonably related to the business of the Borrower and its Subsidiaries);or ancillary thereto; and
(iii) after giving effect to such acquisition, In the Proposed Target shall be owned directly by the Borrower or shall become case of an acquisition of a wholly-owned Person as a new Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; and
(v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis).
(c) the Borrower or its Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and
(c) Any of FIL’s Subsidiaries may enter amalgamate or consolidate with or merge into any other mergerPerson or permit any other Person to merge into them in connection with a sale, consolidation, acquisition transfer or other disposition of assets permitted under Section 7.03 or sale of assets approved in writing by connection with a joint venture Investment permitted under Section 7.05, provided that to the Required Lendersextent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.
Appears in 2 contracts
Samples: Term Loan Agreement (Flextronics International Ltd.), Term Loan Agreement (Flextronics International Ltd.)
Mergers, Acquisitions, Etc. The Borrower shall will not and shall not permit its Subsidiaries to merge or consolidate with or merge into any other Person into, or permit any other Person to merge into itsell, acquire any Person as lease, transfer or otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its assets Property (whether now owned or acquire all hereafter acquired) to, or substantially all enter into any Acquisition, or permit any Subsidiary to do any of the assets of any other Personforegoing, except for the following (each, a “Permitted Acquisition”):following:
(a) the Borrower so long as no Default has occurred and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all is continuing or substantially all of their assets to each other, provided that in any such merger involving the Borrowerwould be caused thereby, the Borrower is or any Subsidiary may make any Acquisition; provided, however, that any such Acquisition shall be permitted only if, (i) before the surviving Person; and
effectiveness of such Acquisition and to the extent required by the Administrative Agent, the Borrower delivers to the Administrative Agent (bA) such guaranties, mortgages, deeds of trust, security agreements, releases, UCC financing statements, UCC terminations and environmental assessments as the Administrative Agent may request, duly executed by the parties thereto, in form and substance satisfactory to the Administrative Agent and accompanied by UCC searches and title investigations demonstrating that, upon the effectiveness of such Acquisition and the recording and filing of any necessary documentation, the Administrative Agent will have a perfected first-priority Lien on the Property to be acquired, and (B) such other agreements, instruments, certificates, approvals, opinions and other documents as any Bank through the Administrative Agent may reasonably request, (ii) the Borrower or any of its Subsidiaries may acquire such Guarantor is the acquiring or surviving entity; (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that:
(iiii) no Default or Event of Default exists and the Acquisition would not reasonably be expected to cause a Default or will result after giving effect to any such acquisition;
Event of Default; (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iiiiv) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) Acquisition on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with all of the financial covenants set forth contained in this Agreement, including, without limitation, Sections 6.12 through 6.14 as of the end of the most recent fiscal quarter, (v) the acquisition target is in the same or similar line of business as Borrower and its Subsidiaries, (v) the terms of Section 7.1 6.10 are satisfied, and Section 7.2(vi) the aggregate amount of cash, Permitted Investments and the remaining unused portion of the Revolver A Commitment is sufficient to fund such Acquisition;
(b) the Borrower and its Subsidiaries may effect the transactions contemplated by the Reorganization;
(c) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary may merge into or consolidate with any other Subsidiary; provided, however, that any such merger or consolidation shall be permitted only if, before the effectiveness of such merger or consolidation and to the extent required by the Administrative Agent, the Borrower delivers to the Administrative Agent documents of the type described in the proviso to clause (a) above; and
(v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis).
(cd) the Borrower or and its Subsidiaries may enter into any other merger, consolidation, acquisition acquire Property in the ordinary course of assets or sale business as necessary for the operation of assets approved in writing by the Required Lenderstheir respective businesses.
Appears in 1 contract
Mergers, Acquisitions, Etc. The Borrower shall will not and shall not permit its Subsidiaries to merge or consolidate with or merge into any other Person into, or permit any other Person to merge into itsell, acquire any Person as lease, transfer or otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its assets Property (whether now owned or acquire all hereafter acquired) to, or substantially all enter into any Acquisition, or permit any Subsidiary to do any of the assets of any other Personforegoing, except for the following (each, a “Permitted Acquisition”):following:
(a) the Borrower so long as no Default has occurred and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all is continuing or substantially all of their assets to each other, provided that in any such merger involving the Borrowerwould be caused thereby, the Borrower is or any Subsidiary may make any Acquisition; provided, however, that any such Acquisition shall be permitted only if, (i) before the surviving Personeffectiveness of such Acquisition and to the extent required by the Majority Banks, the Borrower delivers to the Collateral Agent (A) guaranties, mortgages, deeds of trust, security agreements, releases, UCC financing statements and UCC terminations, duly executed by the parties thereto, in form and substance satisfactory to the Collateral Agent and accompanied by UCC searches, title investigations and legal opinions (except with respect to priority) demonstrating that, upon the effectiveness of such Acquisition and the recording and filing of any necessary documentation, the Collateral Agent will have an Acceptable Security Interest on the Property to be acquired and (B) evidence of company authority to enter into and environmental assessments with respect to such Acquisition; and
(bii) the Borrower or any of its Subsidiaries may acquire such Guarantor is the acquiring or surviving entity; (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that:
(iiii) no Default or Event of Default exists and the Acquisition would not reasonably be expected to cause a Default or will result after giving effect to any such acquisition;
Event of Default; (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iiiiv) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) Acquisition on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with all of the financial covenants set forth contained in this Agreement, including, without limitation, Sections 6.13 and 6.14 as of the end of the most recent fiscal quarter, (v) the acquisition target is in the same or similar line of business as Borrower and its Subsidiaries, (vi) the terms of Section 7.1 6.10 are satisfied, and (vii) the aggregate amount of cash, Permitted Investments and the remaining unused portion of the aggregate Commitments is sufficient to fund such Acquisition;
(b) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary may sell or otherwise transfer all of its Property to, or merge into or consolidate with, any other Subsidiary or the Borrower; provided, however, that any such disposition, merger or consolidation shall be permitted only if, before the effectiveness of such disposition, merger or consolidation and to the extent reasonably required by the Administrative Agent, the Borrower delivers to the Collateral Agent documents of the type described in the proviso to clause (a) above;
(c) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary of the Borrower may sell or otherwise transfer all of its Property to, or merge into or consolidate with, any other Person so long as such transaction is not prohibited by Section 7.26.04;
(d) any Subsidiary of the Borrower may dissolve so long as all of its Property is distributed to the Borrower or a Subsidiary; provided that if such dissolving Subsidiary is a Guarantor, all of its Property shall be distributed to the Borrower or another Guarantor;
(e) the Borrower and its Subsidiaries may acquire Property in the ordinary course of business; and
(vf) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis)El Paso Acquisition.
(c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition of assets or sale of assets approved in writing by the Required Lenders.
Appears in 1 contract
Mergers, Acquisitions, Etc. The Borrower shall will not and shall not permit its Subsidiaries to merge or consolidate with or merge into any other Person into, or permit any other Person to merge into itsell, acquire any Person as lease, transfer or otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its assets Property (whether now owned or acquire all hereafter acquired) to, or substantially all enter into any Acquisition, or permit any Subsidiary to do any of the assets of any other Personforegoing, except for the following (each, a “Permitted Acquisition”):following:
(a) the Borrower so long as no Default has occurred and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all is continuing or substantially all of their assets to each other, provided that in any such merger involving the Borrowerwould be caused thereby, the Borrower or any Subsidiary may make any Acquisition whereby the sole cash compensation paid by the Borrower or any Subsidiary for such Acquisition is made from Excess Proceeds; provided, however, that any such Acquisition shall be permitted only if, (i) before the surviving Personeffectiveness of such Acquisition and to the extent required by the Majority Banks, the Borrower delivers to the Collateral Agent (A) guaranties, mortgages, deeds of trust, security agreements, releases, UCC financing statements and UCC terminations, duly executed by the parties thereto, in form and substance satisfactory to the Collateral Agent and accompanied by UCC searches, title investigations and legal opinions (except with respect to priority) demonstrating that, upon the effectiveness of such Acquisition and the recording and filing of any necessary documentation, the Collateral Agent will have an Acceptable Security Interest on the Property to be acquired and (B) evidence of company authority to enter into and environmental assessments with respect to such Acquisition; and
(bii) the Borrower or any of its Subsidiaries may acquire such Guarantor is the acquiring or surviving entity; (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that:
(iiii) no Default or Event of Default exists and the Acquisition would not reasonably be expected to cause a Default or will result after giving effect to any such acquisition;
Event of Default; (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iiiiv) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) Acquisition on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with all of the financial covenants set forth contained in this Agreement, including, without limitation, Sections 6.13 and 6.14 as of the end of the most recent fiscal quarter, (v) the acquisition target is in the same or similar line of business as Borrower and its Subsidiaries, and (vi) the terms of Section 7.1 6.10 are satisfied;
(b) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary may sell or otherwise transfer all of its Property to, or merge into or consolidate with, any other Subsidiary or the Borrower; provided, however, that any such disposition, merger or consolidation shall be permitted only if, before the effectiveness of such disposition, merger or consolidation and to the extent reasonably required by the Administrative Agent, the Borrower delivers to the Collateral Agent documents of the type described in the proviso to clause (a) above;
(c) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary of the Borrower may sell or otherwise transfer all of its Property to, or merge into or consolidate with, any other Person so long as such transaction is not prohibited by Section 7.26.04;
(d) any Subsidiary of the Borrower may dissolve so long as all of its Property is distributed to the Borrower or a Subsidiary; provided that if such dissolving Subsidiary is a Guarantor, all of its Property shall be distributed to the Borrower or another Guarantor;
(e) the Borrower and its Subsidiaries may acquire Property in the ordinary course of business;
(f) the El Paso Acquisition; and
(g) so long as no Default has occurred and is continuing or would be caused thereby, the Borrower may merge with or consolidate with any other Person, provided, however, that such merger or consolidation shall be permitted only if, (i) the Borrower is the surviving entity of such merger or consolidation, (ii) no Change of Control results therefrom, (iii) immediately after giving effect to such merger or consolidation, the Leverage Ratio and the Interest Charge Coverage Ratio shall not be negatively impacted, (iv) the Collateral Agent will have an Acceptable Security Interest in all of the Collateral and each Guarantor will remain a Guarantor of the Obligations (unless such Guarantor is dissolved or merged into another Guarantor in connection with such transaction as otherwise permitted by this Section 6.03), and (v) the Board result of Directors or other governing body such merger taken as a whole will not be materially adverse to the interests of the Proposed Target shall have approved the acquisition and such acquisition shall be completed Banks; provided, however, if as a result of an armsuch transaction the Borrower’s length negotiation entity type (i.e.e.g., on a non-hostile basis).
corporation, partnership, limited liability company or other) or tax nature changes (cA) the Borrower shall deliver to the Banks such opinions of counsel and corporation, limited liability company or its Subsidiaries partnership documents in connection therewith as the Majority Bank(s) may enter into reasonably request and (B) the Borrower and the Banks agree that this Agreement will be amended in a manner reasonably satisfactory to the Majority Banks(s) (x) to make appropriate changes to reflect any changes to the entity type and/or tax nature of the Borrower while preserving the substance and terms of this Agreement and (y) without the payment of a consent fee or other merger, consolidation, acquisition of assets or sale of assets approved fee with respect solely to the amendments to this Agreement specified in writing by the Required Lendersclause (x).
Appears in 1 contract
Mergers, Acquisitions, Etc. The Borrower shall not and shall not permit its Subsidiaries to Merge or consolidate with with, or merge into any other Person sell, assign, lease or permit any other Person to merge into it, acquire any Person as otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, any Person, or acquire all or substantially all of the assets or of a line of business of any other PersonPerson (or enter into any agreement to do any of the foregoing), or permit any Subsidiary of the Borrower to do so, except for the following (each, a “Permitted Acquisition”):
(a) that any such Subsidiary (other than VSC) may merge into or transfer assets to the Borrower; (b) an acquisition described in Section 8.05(g) may be made; and (c) a Person may merge into the Borrower or any wholly-owned Subsidiary of the Borrower, provided that (i) the Borrower or such wholly-owned Subsidiary is the survivor in such merger; (ii) there shall be, in the judgment of the Agent (after consultation with the Designated Party; but the final determination shall be that of the Agent alone), as a result of such merger no material adverse effect on (x) the business, operations, property, condition (financial or otherwise), prospects, or ownership of the Borrower and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all Subsidiaries, or substantially all of their assets to each other, provided that in any such merger involving the Borrower, the Borrower is the surviving Person; and
(by) the Borrower validity or enforceability of any of the Term Loan Documents or the rights or remedies of the Agent or any of its Subsidiaries may acquire the Banks hereunder or thereunder; (by merger or otherwiseiii) any Person as a new Subsidiary or acquire all or substantially all the Agent shall have been provided with sufficient information and documents, and sufficiently in advance of the effective date of such merger, to enable the Agent to evaluate the merger; (iv) the assets of any other such Person are free of Liens; (each, a “Proposed Target”); provided that:
(iv) no Default or Event of Default exists or will result after giving effect to any such acquisition;
(ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereofwould, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisitionmerger, exist; and (vi) prior to the Proposed Target shall be owned directly by effective date of such merger the Borrower or shall become a and/or such wholly-owned SubsidiarySubsidiary executes and delivers to the Agent such instruments and documents (including without limitation UCC-1 financing statements) as the Agent reasonably requests to confirm the continuing validity, directly or indirectly, perfection and priority of its Lien on the Borrower;
(iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary assets of the Borrower or such wholly-owned by the Borrower at the time the most recent Compliance Certificate was delivered Subsidiary after giving effect to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; and
(v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis)merger.
(c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition of assets or sale of assets approved in writing by the Required Lenders.
Appears in 1 contract
Mergers, Acquisitions, Etc. The Neither the Borrower shall not and shall not permit its Subsidiaries to consolidate with nor any Subsidiary will acquire assets or all or any part of any other Person, or merge into or with or consolidate with any other Person unless (x) the Borrower or permit any other such Subsidiary shall be the surviving entity in such transaction; and (y) substantially all of the assets of such Person to merge into itshall consist of domestic undeveloped Hydrocarbon Interests or domestic developed Oil and Gas Properties; or sell, acquire any Person as lease or otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its Property or assets to any other Person other than the Borrower or acquire an Active Subsidiary; provided, however, nothing shall prohibit Borrower or any Active Subsidiary from: (i) acquiring (a) any domestic undeveloped Hydrocarbon Interests, (b) domestic developed Oil and Gas Properties or (c) all or of the outstanding capital stock of a Person, substantially all of the assets Property of any which consists of domestic undeveloped Hydrocarbon Interests or domestic developed Oil and Gas Properties, so long as Borrower or such Active Subsidiary pledges and/or mortgages to the Lenders substantially all such developed Oil and Gas Properties or all capital stock acquired pursuant thereto by execution of documents in form and substance satisfactory to Agent in its sole discretion, granting perfected, first priority Liens (subject to the Intercreditor Agreement) and security interests in such Oil and Gas Properties subject only to Excepted Liens, Liens otherwise permitted by Section 6.02 and other Person, except for Liens acceptable to the following Required Lenders; or (each, a “Permitted Acquisition”):ii) merging (after having given Agent thirty (30) days prior written notice)
(a) the Borrower and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all any Active or substantially all of their assets to each other, provided that in any such merger involving the Borrower, the Borrower is the surviving Person; and
Inactive Subsidiary into another Active Subsidiary or (b) any Guarantor into Borrower. Notwithstanding the Borrower or preceding, any transaction pursuant to this Section 6.08 shall not be permitted unless at the time of its Subsidiaries may acquire such transaction (by merger or otherwiseA) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (eachboth before and after giving effect thereto, a “Proposed Target”); provided that:
(i) no Default or Event of Default exists or will result after giving effect to any such acquisition;
shall have occurred and be continuing; (iiB) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been be in compliance with the financial covenants set forth in Section 7.1 6.13 and Section 7.2; and
(v) the Board of Directors or other governing body 6.14 as of the Proposed Target shall most recently completed period of four consecutive fiscal quarters ending prior to such transaction for which the financial statements required by Sections 5.01(a) or (b), as the case may be have approved been delivered or for which comparable financial statements have been filed with the acquisition SEC, after giving pro forma effect to such transaction and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis).
(c) the Borrower or its Subsidiaries may enter into to any other merger, consolidation, acquisition event occurring after the commencement of assets or sale such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of assets approved in writing by the Required Lendersfirst day of such period.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Crimson Exploration Inc.)
Mergers, Acquisitions, Etc. The Borrower shall Company will not and shall not permit its Subsidiaries to merge or consolidate with or merge into any other Person into, or permit any other Person to merge into itsell, acquire any Person as lease, transfer or otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its assets Property (whether now owned or acquire all hereafter acquired) to, or substantially all enter into any Acquisition, or permit any Subsidiary to do any of the assets of any other Personforegoing, except for the following following:
(eachi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, a “Permitted the Company or any Subsidiary may make any Acquisition”):
; provided, however, that any such Acquisition shall be permitted only if, (a) before the Borrower effectiveness of such Acquisition and its wholly-owned Subsidiaries may merge to the extent required by the Required Holders, the Company delivers to the Holders (I) guaranties, mortgages, deeds of trust, security agreements, releases, UCC financing statements and UCC terminations, duly executed by the parties thereto, in form and substance satisfactory to the Required Holders and accompanied by UCC searches, title investigations and legal opinions (except with each other respect to priority) demonstrating that, upon the effectiveness of such Acquisition and the Borrower’s wholly-owned Subsidiaries may sell all or substantially all recording and filing of their assets to each other, provided that in any such merger involving the Borrowernecessary documentation, the Borrower is Collateral Agent will have an Acceptable Security Interest on the surviving Person; and
Property to be acquired, (II) such legal opinions in relation to the documents described in the foregoing subclause (I) as the Required Holders may reasonably request, and (III) evidence of company authority to enter into, and environmental assessments with respect to, such Acquisition, (b) the Borrower Company or any of its Subsidiaries may acquire such Guarantor is the acquiring or surviving entity, (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that:
(ic) no Default or Event of Default exists and the Acquisition would not reasonably be expected to cause a Default or will result after giving effect to any such acquisition;
Event of Default, (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iiid) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) Acquisition on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower Company would have been in compliance with all of the financial covenants set forth contained in Section 7.1 this Agreement, including, without limitation, paragraph 6A as of the end of the most recent fiscal quarter, (e) the acquisition target is in the same or similar line of business as the Company and Section 7.2its Subsidiaries, (f) the terms of paragraph 6G are satisfied, and (g) the aggregate amount of cash, Permitted Investments and the remaining unused portion of the Revolver A Commitment under the Bank Agreement is sufficient to fund such Acquisition;
(ii) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary may merge into or consolidate with any other Subsidiary or into the Company; provided, however, that any such merger or consolidation shall be permitted only if, before the effectiveness of such merger or consolidation and to the extent required by the Required Holders, the Company delivers to the Holders documents (or photocopies thereof) of the type described in the proviso to clause (i) above; and
(viii) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition Company and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis).
(c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition acquire Property in the ordinary course of assets or sale of assets approved in writing by the Required Lendersbusiness.
Appears in 1 contract
Samples: Senior Secured Notes Master Shelf Agreement (Crosstex Energy Lp)
Mergers, Acquisitions, Etc. The Borrower shall not and shall not permit its Subsidiaries to consolidate Consolidate with or merge into any other Person or permit any other Person to merge into it, acquire any Person as a new Subsidiary, sell all or substantially all of its assets Subsidiary or acquire all or substantially all of the assets of any other Person, except for that (i) the following Borrower may consummate the Merger with Varsity in accordance with the Merger Documents upon satisfaction of the Conditions to Merger, (each, a “Permitted Acquisition”):
(aii) the Borrower and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all or substantially all of their assets to each other, provided that (A) no Default or Event of Default then exists or will result after giving effect to any such merger and (B) in any such merger involving the Borrower, the Borrower is the surviving Person; and
Person and (biii) the Borrower or any of its Subsidiaries may acquire (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person provided that (each, a “Proposed Target”); provided that:
(iA) no Default or Event of Default exists or will result after giving effect to any such acquisition;
, (iiB) the Proposed Target Person to be so acquired is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries Subsidiaries, (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(ivC) on a pro forma basis, as if the Proposed Target Subsidiary so acquired had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; and
5.03 hereof, (vD) the Board of Directors Person to be so acquired has executed or timely executes a Guaranty and other governing body Security Documents in favor of the Proposed Target shall have approved Administrative Agent and the acquisition and Lenders in accordance with the terms hereof, (E) (I) if such acquisition is to be consummated during the period beginning between March 1 and October 31 of any year, inclusive, Availability at such time shall exceed $5,000,000 and (II) if such acquisition is to be completed as a result consummated at any other time, Availability shall exceed $15,000,000 and (F) the consideration for such acquisition does not, when added to the consideration for all other acquisitions subsequent to the Closing Date, exceed the sum of an arm’s length negotiation $10,000,000 plus the amount funded from the proceeds of cash equity received by the Borrower (i.e., on a non-hostile basissuch cash equity being received by the Borrower from the Parent from either equity contributions to the Parent or the proceeds of the issuance of Indebtedness by the Parent permitted by the Parent Guaranty).
(c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition of assets or sale of assets approved in writing by the Required Lenders.
Appears in 1 contract
Mergers, Acquisitions, Etc. The Borrower shall will not, and will not and shall not permit its Subsidiaries to consolidate with or merge into any other Person or permit any other Person Loan Party to, become a party to merge into ita merger or consolidation, acquire any Person as a new Subsidiary, sell all or substantially all of its assets purchase or otherwise acquire all or substantially all a substantial part of the assets business or Property of any other Person or all or a substantial part of the business or Property of a division or branch of a Person or Capital Stock of any Person, except for the following (eachor wind-up, a “Permitted Acquisition”):
(a) the dissolve, or liquidate itself; PROVIDED that as long as no Default exists or would result therefrom and provided Borrower and its wholly-owned Subsidiaries may merge with each other gives Administrative Agent and the Borrower’s wholly-owned Subsidiaries may sell all or substantially all of their assets to each other, provided that in any such merger involving the Borrower, the Borrower is the surviving Person; and
(b) the Borrower or any of its Subsidiaries may acquire (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided thatLenders prior written notice:
(i) A Subsidiary may wind-up, dissolve, or liquidate if (a) in the case of a Domestic Subsidiary, such Domestic Subsidiary's Property is transferred to Borrower or a Wholly-Owned Granting Domestic Subsidiary of Borrower and the Loan Party acquiring such Domestic Subsidiary's Property complies with its obligations under SECTION 9.10 simultaneously with such acquisitions, or (b) in the case of a Foreign Subsidiary, such Foreign Subsidiary's Property is transferred to Xxxxxxxxxxx Limited, an Irish company.
(ii) Any Subsidiary of Borrower may merge or consolidate with Borrower (provided Borrower is the surviving entity) or with any Wholly-Owned Granting Domestic Subsidiary of Borrower, and any Foreign Subsidiary may merge or consolidate with or into Xxxxxxxxxxx Limited, an Irish company (provided Xxxxxxxxxxx Limited is the surviving entity); and
(iii) Borrower or any Domestic Subsidiary of Borrower may acquire any Person or all or a substantial part of the business or Property of a Person (or a division or branch thereof) provided that: (A) after giving pro forma effect to any such acquisition, no Default or Event of Default exists would exist; (B) any new Domestic Subsidiary formed or will result after giving effect acquired in connection with such an acquisition shall contemporaneously therewith execute and delivery to Administrative Agent a Joinder Agreement and such Security Documents as Administrative Agent may require in its absolute discretion; (C) any acquisition of a Person must be of at least a sufficient interest in the Capital Stock of such acquisition;
Person to constitute such Person as a "Subsidiary" of Borrower; and (iiD) the Proposed Target is engaged in a business total cash and Debt (including, without limitation, cash, noncompete payments, consulting payments, earn-outs, and all Debt assumed, incurred or activity reasonably related to the business of the Borrower and its Subsidiaries (acquired) consideration for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; and
(v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and any such acquisition shall be completed not exceed Forty Million Dollars ($40,000,000) and the total aggregate consideration for any such acquisition (including, without limitation, the value (determined as of the date of execution of a result definitive agreement related thereto) of an arm’s length negotiation any Capital Stock and other equity given as consideration) shall not exceed One Hundred Million Dollars (i.e., on a non-hostile basis$100,000,000).
(c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition of assets or sale of assets approved in writing by the Required Lenders.
Appears in 1 contract
Mergers, Acquisitions, Etc. The Borrower shall will not and shall not permit its Subsidiaries to merge or consolidate with or merge into any other Person into, or permit any other Person to merge into itsell, acquire any Person as lease, transfer or otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its assets Property (whether now owned or acquire all hereafter acquired) to, or substantially all enter into any Acquisition, or permit any Subsidiary to do any of the assets of any other Personforegoing, except for the following (each, a “Permitted Acquisition”):following:
(a) the Borrower so long as no Default has occurred and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all is continuing or substantially all of their assets to each other, provided that in any such merger involving the Borrowerwould be caused thereby, the Borrower is or any Subsidiary may make any Acquisition; provided, however, that any such Acquisition shall be permitted only if, (i) before the surviving Personeffectiveness of such Acquisition and to the extent required by the Majority Banks, the Borrower delivers to the Collateral Agent (A) guaranties, mortgages, deeds of trust, security agreements, releases, UCC financing statements and UCC terminations, duly executed by the parties thereto, in form and substance satisfactory to the Collateral Agent and accompanied by UCC searches, title investigations and legal opinions (except with respect to priority) demonstrating that, upon the effectiveness of such Acquisition and the recording and filing of any necessary documentation, the Collateral Agent will have an Acceptable Security Interest on the Property to be acquired and (B) evidence of company authority to enter into and environmental assessments with respect to such Acquisition; and
(bii) the Borrower or any of its Subsidiaries may acquire such Guarantor is the acquiring or surviving entity; (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that:
(iiii) no Default or Event of Default exists and the Acquisition would not reasonably be expected to cause a Default or will result after giving effect to any such acquisition;
Event of Default; (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iiiiv) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) Acquisition on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with all of the financial covenants set forth contained in this Agreement, including, without limitation, Sections 6.13 and 6.14 as of the end of the most recent fiscal quarter, (v) the acquisition target is in the same or similar line of business as Borrower and its Subsidiaries, (vi) the terms of Section 7.1 6.10 are satisfied, and (vii) the aggregate amount of cash, Permitted Investments and the remaining unused portion of the aggregate Commitments is sufficient to fund such Acquisition;
(b) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary may sell or otherwise transfer all of its Property to, or merge into or consolidate with, any other Subsidiary or the Borrower; provided, however, that any such disposition, merger or consolidation shall be permitted only if, before the effectiveness of such disposition, merger or consolidation and to the extent reasonably required by the Administrative Agent, the Borrower delivers to the Collateral Agent documents of the type described in the proviso to clause (a) above;
(c) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary of the Borrower may sell or otherwise transfer all of its Property to, or merge into or consolidate with, any other Person so long as such transaction is not prohibited by Section 7.26.04;
(d) any Subsidiary of the Borrower may dissolve so long as all of its Property is distributed to the Borrower or a Subsidiary; provided that if such dissolving Subsidiary is a Guarantor, all of its Property shall be distributed to the Borrower or another Guarantor; and
(v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis).
(ce) the Borrower or and its Subsidiaries may enter into any other merger, consolidation, acquisition acquire Property in the ordinary course of assets or sale of assets approved in writing by the Required Lendersbusiness.
Appears in 1 contract
Mergers, Acquisitions, Etc. The Borrower shall not and shall not permit its Subsidiaries to consolidate with or merge into any other Person or permit any other Person to merge into it, acquire any Person as a new Subsidiary, sell all or substantially all of its assets or acquire all or substantially all of the assets of any other Person, except for the following (each, a “Permitted Acquisition”):
(a) the Borrower and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all or substantially all of their assets to each other, provided that in any such merger involving the Borrower, the Borrower is the surviving Person; and
(b) the Borrower or any of its Subsidiaries may acquire (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that:
(i) no Default or Event of Default exists or will result after giving effect to any such acquisition;
(ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; and;
(v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., i.e. on a non-hostile basis); and
(vi) after giving effect to such acquisition, (A) the pro forma Total Leverage Ratio shall be less than 2.50 to 1.00 or (B) the total cash or other consideration paid or payable in cash or other property (including any assumed Indebtedness) in connection with such acquisition and all acquisitions during such fiscal year shall not exceed $100,000,000.
(c) the Borrower or its Subsidiaries may enter into any other merger, consolidation, acquisition of assets or sale of assets approved in writing by the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Fair Isaac Corp)
Mergers, Acquisitions, Etc. The Borrower (a) No Credit Party shall not and shall not permit its Subsidiaries to directly or indirectly, by operation of law or otherwise, merge with, consolidate with or merge into any other Person or permit any other Person to merge into itwith, acquire any Person as a new Subsidiary, sell all or substantially all of its assets or acquire all or substantially all of the assets or Stock of or otherwise combine with or acquire, any other Person, except for the following (eachi) as permitted by Sections 6.1(b) or (c) below, a “Permitted Acquisition”):
(aii) any Subsidiary of Holdings (other than the Borrower and its wholly-owned Subsidiaries or the Parent) may merge or consolidate with each other and the Borrower’s wholly-owned Subsidiaries may sell or convey all or substantially all of their its assets to each other, Borrower or another Subsidiary of Holdings that is a Guarantor provided that in the Borrower or such Guarantor is the surviving entity from any such merger involving the Borroweror consolidation, (iii) any Subsidiary of Holdings (other than the Borrower or the Parent) that is the surviving Person; anda Guarantor may merge or consolidate with or convey all or substantially all of its assets to another Subsidiary of Holdings, that is a Guarantor, and (iv) any Subsidiary of Holdings that is not a Guarantor may merge or consolidate with or convey all or substantially all of its assets to another Subsidiary of Holdings that is not a Guarantor.
(b) Notwithstanding the foregoing, Borrower or any Subsidiary of its Subsidiaries Borrower (or Holdings or the Parent, so long as all assets or Stock so acquired are transferred to Borrower or any Subsidiary of Borrower contemporaneously therewith), may acquire (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all of the assets or Stock of any other Person (eachthe "Target") (in each case, a “Proposed "Permitted Acquisition"), if the sum of all amounts payable in connection with such Permitted Acquisition (including the fair market value of any non-redeemable Stock issued or exchanged in connection with such acquisition and all Indebtedness, liabilities to the extent that such liabilities exceed assets, and contingent obligations (including, without limitation any earn-out obligations) incurred or assumed in connection therewith and required to be recognized in accordance with GAAP or otherwise reflected on a consolidated balance sheet of any of the Credit Parties and the Target”) shall not exceed, individually and in the aggregate for all such Permitted Acquisitions consummated in any Fiscal Year within each of the following three tiers, (x) $100,000 and $500,000, respectively (each Permitted Acquisition covered by this clause (x) herein called a "First Tier Acquisition"); provided that, (y) $2,000,000 and $5,000,000, respectively, and (z) $5,000,000 and $15,000,000, respectively (each Permitted Acquisition covered by this clause (z) herein called a "Third Tier Acquisition"), subject to the satisfaction of each of the following conditions if and to the extent applicable:
(i) no Default or Event except in the case of Default exists or will result a First Tier Acquisition (in which case Agent shall receive from Borrower written notice of such First Tier Acquisition that otherwise satisfies the conditions set forth in this clause (i) not more than 10 Business Days after giving effect to any its consummation), Agent shall receive at least 10 Business Days' prior written notice of such acquisitionproposed Permitted Acquisition from Borrower, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall involve assets of which not less than 95% are located in the Proposed Target is United States or Canada and comprising a business, or those assets of a business, of the type engaged in a by Borrower as of the Closing Date and reasonable extensions thereof and activities incidental thereto, and which business would not subject Agent or activity reasonably related any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the business exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition; provided that such Permitted Acquisitions may involve foreign assets located outside of the Borrower United States or Canada so long as the sum of (A) the aggregate value (based upon the greater of book value or fair market value ) of all such foreign assets acquired and its Subsidiaries (for purposes hereof, B) the operation aggregate amount of an Industrial Loan Corporation all additional investments made pursuant to Section 6.2(xvii) shall be deemed reasonably related to the business of the Borrower and its Subsidiaries)not exceed $1,000,000 in any Fiscal Year;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or other governing body);
(iv) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such acquisitionPermitted Acquisition, except (A) Loans made hereunder, (B) Indebtedness secured by purchase money security interests and Capital Leases, in each case to the Proposed Target shall be owned directly by extent permitted in Section 6.3(a)(i), (C) unsecured Indebtedness to the Borrower or shall become a wholly-owned Subsidiaryextent permitted in Section 6.3(a)(xi) and (D) ordinary course trade payables, directly or indirectly, accrued expenses and unsecured Indebtedness of the BorrowerTarget;
(ivv) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vi) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Holdings and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(vii) Except in the case of a First Tier Acquisition, concurrently with delivery of any notice required to be delivered pursuant to Section 6.1(b)(i), Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition, and such Acquisition Pro Forma shall reflect that on a pro forma basis, as if the Proposed Target had been a Subsidiary no Event of the Borrower Default has occurred and is continuing or owned by the Borrower at the time the most recent Compliance Certificate was delivered would result after giving effect to the Administrative Agent, the Borrower such Permitted Acquisition and Holdings and its Subsidiaries would have been in compliance with the Financial Covenants for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition and after giving effect to such Permitted Acquisition as if made on the first day of such period (or, if such Permitted Acquisition is consummated prior to the delivery to Agent of the initial Compliance Certificate required under Annex E, such Acquisition Pro Forma shall reflect that, on a pro forma basis, Holdings and its Subsidiaries would have been in compliance with the Financial Covenants applicable to the Fiscal Quarter ending June 30, 2003 for the most recently completed four Fiscal Quarters prior to the consummation of such Permitted Acquisition and after giving effect to such Permitted Acquisition as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the remainder of the Fiscal Year during which such Permitted Acquisition occurs and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Holdings and Borrower to the effect that: (w) Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Holdings and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Holdings and its Subsidiaries subsequent to the date thereof based upon the historical performance of Holdings and its Subsidiaries and the Target and show that Holdings and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Annex G after giving effect to such Permitted Acquisition; and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition;
(viii) except in the case of a First Tier Acquisition, on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 7.1 5.9;
(ix) at the time of such Permitted Acquisition and Section 7.2after giving effect thereto, no Default or Event of Default has occurred and is continuing;
(x) except in the case of a First Tier Acquisition, Borrower has established and is maintaining the Cash Management System satisfactory to Agent; and
(vxi) in the Board case of Directors or other governing body a Third Tier Acquisition, after giving effect to such Permitted Acquisition, the product of (A) Adjusted EBITDA for the Proposed Target shall have approved the acquisition and such acquisition shall most recently completed Fiscal Quarter times (B) four (4) must be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis)greater than $28,000,000.
(c) Also notwithstanding anything herein to the Borrower contrary, Holdings or any of its Subsidiaries may enter into any other merger, consolidation, acquisition consummate the Law.com Acquisition so long as it is consummated in accordance with xxx xxrms and conditions described on Disclosure Schedule 6.1(c) and no Default or Event of assets Default shall exist before or sale of assets approved in writing by the Required Lendersafter giving effect to such transaction.
Appears in 1 contract
Samples: Credit Agreement (American Lawyer Media Holdings Inc)
Mergers, Acquisitions, Etc. The Neither the Borrower shall not and shall not permit its Subsidiaries to consolidate with nor any Subsidiary will acquire assets or all or any part of any other Person, or merge into or with or consolidate with any other Person unless (x) the Borrower or permit any other such Subsidiary shall be the surviving entity in such transaction; and (y) substantially all of the assets of such Person to merge into itshall consist of domestic undeveloped Hydrocarbon Interests or domestic developed Oil and Gas Properties; or sell, acquire any Person as lease or otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its Property or assets to any other Person other than the Borrower or acquire an Active Subsidiary; provided, however, nothing shall prohibit Borrower or any Active Subsidiary from: (i) acquiring (a) any domestic undeveloped Hydrocarbon Interests, (b) domestic developed Oil and Gas Properties or (c) all or of the outstanding capital stock of a Person, substantially all of the assets Property of any which consists of domestic undeveloped Hydrocarbon Interests or domestic developed Oil and Gas Properties, so long as Borrower or such Active Subsidiary pledges and/or mortgages to the Lenders substantially all such developed Oil and Gas Properties or all capital stock acquired pursuant thereto by execution of documents in form and substance satisfactory to Agent in its sole discretion, granting perfected, first priority Liens (subject to the Intercreditor Agreement) and security interests in such Oil and Gas Properties subject only to Excepted Liens, Liens otherwise permitted by Section 6.02 and other Person, except for Liens acceptable to the following Required Lenders; or (each, a “Permitted Acquisition”):ii) merging (after having given Agent thirty (30) days prior written notice)
(a) the Borrower and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all any Active or substantially all of their assets to each other, provided that in any such merger involving the Borrower, the Borrower is the surviving Person; and
Inactive Subsidiary into another Active Subsidiary or (b) any Guarantor into Borrower. Notwithstanding the Borrower or preceding, any transaction pursuant to this Section 6.08 shall not be permitted unless at the time of its Subsidiaries may acquire such transaction (by merger or otherwiseA) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (eachboth before and after giving effect thereto, a “Proposed Target”); provided that:
(i) no Default or Event of Default exists or will result after giving effect to any such acquisition;
shall have occurred and be continuing; (iiB) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been be in compliance with the financial covenants set forth in Section 7.1 Sections 6.12, 6.13 and Section 7.2; and
(v) the Board of Directors or other governing body 6.14 as of the Proposed Target shall most recently completed period of four consecutive fiscal quarters ending prior to such transaction for which the financial statements required by Sections 5.01(a) or (b), as the case may be have approved been delivered or for which comparable financial statements have been filed with the acquisition SEC, after giving pro forma effect to such transaction and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis).
(c) the Borrower or its Subsidiaries may enter into to any other merger, consolidation, acquisition event occurring after the commencement of assets or sale such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of assets approved in writing by the Required Lendersfirst day of such period.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Crimson Exploration Inc.)
Mergers, Acquisitions, Etc. The No Borrower Party shall not and shall not permit its Subsidiaries to reorganize, recapitalize or consolidate with or merge into any other Person or permit any other Person to merge into it, acquire any Person as a new Subsidiary, sell Subsidiary or acquire all or substantially all of its the assets, or any identifiable business unit or division, of any other Person, except for the following:
(A) the Borrower and the other Borrower Parties may merge with each other; provided that (1) no Default shall have occurred and be continuing or would result after giving effect to any such merger, (2) in any such merger involving the Borrower and another Loan Party, the Borrower is the surviving Person and (3) in any such merger involving a Loan Party and another Borrower Party, such Loan Party is the surviving Person; and (B) a merger or consolidation of a Person into the Borrower or into a Guarantor which constitutes an acquisition permitted by Section 5.02(d)(ii); provided that no Default shall have occurred and be continuing or would result after giving effect to any such merger; and
(ii) Acquisitions by any Borrower Party of any Person or the assets of a Person as a new Subsidiary or acquire of all or substantially all of the assets of any other Person, except for the following (each, a “Permitted Acquisition”):
(a) the Borrower and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all Person or substantially all of their assets to each other, provided that in any such merger involving the Borrower, the Borrower is the surviving Person; and
(b) the Borrower identifiable business unit or any of its Subsidiaries may acquire (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets division of any other Person (eachin each case, a the “Proposed Target”); provided that:
(iA) no No Default or Event of Default exists has occurred and is continuing on the date of, or will result immediately after giving effect to to, any such acquisition;
acquisition (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower actually and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if the );
(B) The Proposed Target had been a Subsidiary is in the same or similar line of business as the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; anda line of business reasonably related thereto or a reasonable extension thereof;
(vC) the Board of Directors or other governing body The acquisition of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., i.e. on a non-hostile basis).;
(cD) The acquisition of the Proposed Target shall be consummated, in all material respects, in accordance with all applicable Governmental Rules;
(E) The Borrower has delivered to the Administrative Agent, within at least 10 Business Days prior to the closing date of such proposed acquisition, financial statements of the subject of such acquisition (or, in the case of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets) to the extent available;
(F) The Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance with each of the financial covenants in Section 5.03;
(G) If such Proposed Target remains a separate Subsidiary, all action required of such Subsidiary and the Borrower Parties under Section 5.01(i) shall be completed substantially concurrently with the consummation of such acquisition; and
(H) The consideration paid or payable in cash (including any earn-out or similar contingent consideration) in connection with such acquisition, when taken together with each other Permitted Acquisition consummated after the Closing Date shall not exceed $150,000,000 in the aggregate during the term of this Agreement; provided that with respect to any proposed Permitted Acquisition, so long as (x) the Borrower or its Subsidiaries may enter into any other mergernet income (determined in accordance with GAAP, consolidationconsistently applied) of the Proposed Target of such Permitted Acquisition for the last twelve months ended for which financial statements are available as of closing of such acquisition is not less than zero and (y) the Total Leverage Ratio as of the date of, acquisition of assets or sale of assets approved and after giving pro forma effect to, such proposed Permitted Acquisition is less than 2.00:1.00, then compliance with the $150,000,000 aggregate limitation in writing by the Required Lendersthis clause (H) shall not be a condition to such proposed Permitted Acquisition.
Appears in 1 contract
Samples: Credit Agreement (International Rectifier Corp /De/)
Mergers, Acquisitions, Etc. The Borrower No Loan Party shall not and shall not permit its Subsidiaries to consolidate with or merge into any other Person or permit any other Person to merge into it, acquire any Person as a new Subsidiary, sell all or substantially all of its assets Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following (each, a “Permitted Acquisition”):following:
(ai) (A) the Borrower and its wholly-owned Subsidiaries the other Loan Parties (other than the Foreign IP Holding Company) may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all or substantially all of their assets to each other, ; provided that (1) no Default shall have occurred and be continuing or would result after giving effect to any such merger, (2) in any such merger involving the BorrowerBorrower and another Loan Party, the Borrower is the surviving Person, (3) in any such merger involving a Guarantor and another Loan Party (other than the Borrower), such Guarantor is the surviving Person and (4) in any such merger involving a Wholly-Owned Subsidiary and a Non-Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary is the surviving Person; andand (B) a merger or consolidation of a Person with and into the Borrower, a Guarantor or a Pledged Foreign Subsidiary (other than the Foreign IP Holding Company) which constitutes an acquisition permitted by Section 5.02(d)(ii); provided that no Default shall have occurred and be continuing or would result after giving effect to any such merger;
(bii) Acquisitions by the Borrower Borrower, a Guarantor or a Pledged Foreign Subsidiary (other than the Foreign IP Holding Company) of any Person or the assets of its Subsidiaries may acquire (by merger or otherwise) any a Person as a new Subsidiary or acquire of all or substantially all of the assets of any other Person or identifiable business unit or division of any other Person (eachin each case, a the “Proposed Target”); provided that:
(iA) no No Default or Event of Default exists has occurred and is continuing on the date of, or will result immediately after giving effect to to, any such acquisition;
(iiB) the The Proposed Target is engaged in the same line of business as the Borrower or a line of business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries)thereto or a reasonable extension thereof;
(iiiC) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1 and Section 7.2; and
(v) the Board of Directors or other governing body The acquisition of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., i.e. on a non-hostile basis).;
(cD) The acquisition of the Proposed Target shall be consummated, in all material respects, in accordance with all applicable Governmental Rules;
(E) The Borrower has delivered to the Administrative Agent at least 15 calendar days prior to the closing date of such proposed acquisition: (1) written notice of such proposed acquisition, (2) financial statements of the subject of such acquisition (or, in the case of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets) to the extent available, but in no event for less than the immediately preceding twelve months (to the extent available), and (3) for each acquisition when the total cash consideration exceeds $30,000,000, pro forma financial statements reflecting the combined projected performance of the Loan Parties during the 12 months immediately following consummation of such transaction, certified to the Administrative Agent and the Lenders as being the good faith projections of the Borrower, in form and detail reasonably acceptable to the Administrative Agent, which projections shall show that such acquisition will not result in any Default hereunder;
(F) The Borrower shall be in compliance with the financial covenants set forth in this Agreement on a pro forma basis after giving effect to the acquisition of the Proposed Target as of the last day of the fiscal quarter most recently ended;
(G) If the aggregate amount of consideration paid or payable in cash in connection with such acquisition (including seller notes, “earn-out” and other contingent consideration (determined as if such “earn-out” or other contingent consideration will be earned, due and payable) calculated at the greater of (i) the Borrower maximum stated or its Subsidiaries may enter into any other mergerdeterminable amount thereof, consolidationor if not stated or if indeterminable, acquisition of assets or sale of assets approved the maximum amount thereof estimated in writing good faith by the Required LendersBorrower and (ii) the amounts paid in respect thereof), when taken together with the aggregate amount of consideration paid or payable in cash or other property in connection with each other Permitted Acquisition consummated since the last day of the fiscal quarter most recently ended exceeds $30,000,000, the Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance as described in clause (F) above;
(H) The Administrative Agent shall hold a perfected, first priority security interest in and lien on, if the Proposed Target survives such transaction as a separate Subsidiary, any Equity Securities in the Proposed Target to the extent required by Section 5.01(i)); and
(I) If such Proposed Target remains a separate Subsidiary, all action required of the Loan Parties under Section 5.01(i) shall be completed within 30 days following the consummation of such acquisition.
Appears in 1 contract
Samples: Credit Agreement (Netflix Inc)
Mergers, Acquisitions, Etc. The Borrower shall will not and shall not permit its Subsidiaries to merge or consolidate with or merge into any other Person into, or permit any other Person to merge into itsell, acquire any Person as lease, transfer or otherwise dispose of (whether in one transaction or in a new Subsidiary, sell series of transactions) all or substantially all of its assets Property (whether now owned or acquire all hereafter acquired) to, or substantially all enter into any Acquisition, or permit any Subsidiary to do any of the assets of any other Personforegoing, except for the following (each, a “Permitted Acquisition”):following:
(a) the Borrower so long as no Default has occurred and its wholly-owned Subsidiaries may merge with each other and the Borrower’s wholly-owned Subsidiaries may sell all is continuing or substantially all of their assets to each other, provided that in any such merger involving the Borrowerwould be caused thereby, the Borrower is or any Subsidiary may make any Acquisition; provided, however, that any such Acquisition shall be permitted only if, (i) before the surviving Person; and
effectiveness of such Acquisition and to the extent required by the Administrative Agent, the Borrower delivers to the Administrative Agent (bA) such guaranties, mortgages, deeds of trust, security agreements, releases, UCC financing statements, UCC terminations and environmental assessments as the Administrative Agent may request, duly executed by the parties thereto, in form and substance satisfactory to the Administrative Agent and accompanied by UCC searches and title investigations demonstrating that, upon the effectiveness of such Acquisition and the recording and filing of any necessary documentation, the Administrative Agent will have a perfected first-priority Lien on the Property to be acquired, and (B) such other agreements, instruments, certificates, approvals, opinions and other documents as any Bank through the Administrative Agent may reasonably request, (ii) the Borrower or any of its Subsidiaries may acquire such Guarantor is the acquiring or surviving entity; (by merger or otherwise) any Person as a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a “Proposed Target”); provided that:
(iiii) no Default or Event of Default exists and the Acquisition would not reasonably be expected to cause a Default or will result after giving effect to any such acquisition;
Event of Default; (ii) the Proposed Target is engaged in a business or activity reasonably related to the business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial Loan Corporation shall be deemed reasonably related to the business of the Borrower and its Subsidiaries);
(iiiiv) after giving effect to such acquisition, the Proposed Target shall be owned directly by the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;
(iv) Acquisition on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or owned by the Borrower at the time the most recent Compliance Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance with all of the financial covenants set forth contained in this Agreement, including, without limitation, Sections 6.12 through 6.15 as of the end of the most recent fiscal quarter, (v) the acquisition target is in the same or similar line of business as Borrower and its Subsidiaries, (v) the terms of Section 7.1 6.10 are satisfied, and Section 7.2(vi) the aggregate amount of cash, Permitted Investments and the remaining unused portion of the Revolver A Commitment is sufficient to fund such Acquisition;
(b) the Borrower and its Subsidiaries may effect the transactions contemplated by the Reorganization;
(c) so long as no Default has occurred and is continuing or would be caused thereby, any Subsidiary may merge into or consolidate with any other Subsidiary; provided, however, that any such merger or consolidation shall be permitted only if, before the effectiveness of such merger or consolidation and to the extent required by the Administrative Agent, the Borrower delivers to the Administrative Agent documents of the type described in the proviso to clause (a) above; and
(v) the Board of Directors or other governing body of the Proposed Target shall have approved the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation (i.e., on a non-hostile basis).
(cd) the Borrower or and its Subsidiaries may enter into any other merger, consolidation, acquisition acquire Property in the ordinary course of assets or sale business as necessary for the operation of assets approved in writing by the Required Lenderstheir respective businesses.
Appears in 1 contract
