Common use of Mergers, Acquisitions, Etc Clause in Contracts

Mergers, Acquisitions, Etc. None of the Borrowers or any of FIL’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following: (a) The Borrowers and FIL’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below, provided that (i) (A) in any such amalgamation or merger involving any Borrower, such Borrower is the surviving Person and (B) in any such amalgamation or merger involving a Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a 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 Borrowers and FIL’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person, provided that: (i) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) Such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) In the case of an acquisition of a Person as a new Subsidiary, the Borrowers or FIL’s 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 amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets permitted under Section 7.03 or in connection with a joint venture Investment permitted under Section 7.05, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Borrowers or any of FIL’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following: (a) The Borrowers and FIL’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below, provided that (iA) (A1) in any such amalgamation or merger involving any Borrower, such Borrower is the surviving Person and (B2) in any such amalgamation or merger involving a Guarantor, the surviving Person is an Eligible Material Subsidiary and becomes a Guarantor by executing and delivering such documents of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (iiB) 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 Borrowers and FIL’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person, provided that: (i) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) Such Person (or line or division) is not primarily engaged in any business substantially different from (A1) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B2) any business reasonably related or ancillary thereto; and (iii) In the case of an acquisition of a Person as a new Subsidiary, the Borrowers or FIL’s 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 amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets permitted under Section 7.03 or in connection with a joint venture Investment permitted under Section 7.05, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of Neither the Borrowers or Borrower nor any of FIL’s its Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) The Borrowers Borrower and FIL’s its Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below, provided that (i) (A) in any such amalgamation or merger involving any the Borrower, such the Borrower is the surviving Person 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 Borrowers Borrower and FIL’s its Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person, provided that: (i) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) Such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company Borrower or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) In the case of an acquisition of a Person as a new Subsidiary, the Borrowers Borrower or FIL’s its Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) Any of FILFlex’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets permitted under Section 7.03 or in connection with a joint venture Investment permitted under Section 7.05, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of Neither the Borrowers or Borrower nor any of FIL’s its Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following: (a) The Borrowers Borrower and FIL’s its Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below, provided that (i) (A) in any such amalgamation or merger involving any the Borrower, such the Borrower is the surviving Person 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 Borrowers Borrower and FIL’s its Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person, provided that: (i) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) Such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company Borrower or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) In the case of an acquisition of a Person as a new Subsidiary, the Borrowers Borrower or FIL’s its Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) Any of FILFlex’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets permitted under Section 7.03 or in connection with a joint venture Investment permitted under Section 7.05, provided that to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.

Mergers, Acquisitions, Etc. None of the Borrowers or any of FIL’s Subsidiaries No Loan Party shall amalgamate reorganize, recapitalize or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into themit, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following: (aA) The Borrowers the Borrower and FIL’s Subsidiaries the other Loan Parties may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below, other; provided that (i1) no Event of Default shall have occurred and be continuing or would result after giving effect to any such merger, (A2) in any such amalgamation or merger involving any Borrowerthe Borrower and another Loan Party, such the Borrower is the surviving Person Person, and (3) in any such merger involving a Guarantor and another Loan Party (other than the Borrower), such Guarantor is the surviving Person; and (B) in any such amalgamation a merger or merger involving consolidation of a Guarantor, Person into the surviving Person is an Eligible Material Subsidiary and becomes Borrower or into a Guarantor which constitutes an acquisition permitted by executing and delivering such documents Section 5.02(d)(ii); provided that no Event of assumption, and related certificates and legal opinions as the Administrative Agent may reasonably request, and (ii) in each case, no Default has shall have occurred and is be continuing on the date of, or will would result after giving effect to, to any such amalgamation or merger; (bii) The Borrowers and FIL’s Subsidiaries may acquire Acquisitions by the Borrower or a Guarantor of any Person or the assets of a Person as a new Subsidiary or of all or substantially all of the assets of any other Person or line of identifiable business unit or division of any Personother Person (in each case, the “Proposed Target”); provided that: (iA) No Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition (actually and on a pro forma basis); (B) The Proposed Target is in the same or similar line of business as the Borrower or in a line of business that is complementary to the business of the Borrower; (C) The acquisition of the Proposed Target shall be completed as a result of an arm’s length negotiation (i.e. on a non-hostile basis); (D) The acquisition of the Proposed Target shall be consummated, in all material respects, in accordance with all applicable Governmental Rules; (E) For any proposed acquisition of $15,000,000 or more, such acquisition must be accretive to Consolidated EBITDA; provided that in no event shall acquisitions that are not accretive to Consolidated EBITDA exceed $45,000,000 in the aggregate in any Fiscal Year; (F) The Borrower has delivered to the Administrative Agent at least 20 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, and (3) 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; (G) 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; (H) The Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance as described in clause (G) above; (I) No Proposed Target shall be organized or domiciled under the law of any jurisdiction outside the United States, and no Proposed Target shall have 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) unless such Proposed Target will be acquired as a Foreign Subsidiary and 66% of the voting Equity Securities of such Foreign Subsidiary shall be pledged as Collateral and the other requirements of Section 5.01(i) shall have been satisfied; (J) The Administrative Agent shall hold a perfected, first priority security interest in and lien on all of the assets acquired by the Borrower or a Guarantor in such transaction (including but not limited to the assets of the Proposed Target (unless it is, or is acquired by, a Foreign Subsidiary), 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 and, in connection with any Foreign Subsidiary, within the time frame set forth in Section 5.01(i)) (it being understood that if those Equity Securities are Margin Stock, then the Loan Parties shall retire or otherwise cause such Equity Securities to no longer retain their status as Margin Stock immediately following such acquisition); (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; (ii) Such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iiiL) In the case of an acquisition of a Person as a new Subsidiaryany Fiscal Year, the Borrowers aggregate amount of consideration paid or FIL’s Subsidiaries possess the power to direct payable in cash or cause the direction of the management and policies of such Person; and (c) Any of FIL’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them property in connection with a salesuch acquisition consummated in such Fiscal Year (including seller notes, transfer “earn-out” and other contingent consideration (if contingent, determined as if such “earn-out” or other disposition contingent consideration will be earned, due and payable in such Fiscal Year) calculated at the greater of assets permitted under Section 7.03 (i) the maximum stated or determinable amount thereof, or if not stated or if indeterminable, the maximum amount thereof estimated in good faith by the Borrower 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 a joint venture Investment permitted under Section 7.05, provided that to each other Permitted Acquisition consummated on or after the extent any Loan Party is a party to any Closing Date and in such joint venture, such Loan Party Fiscal Year shall be the surviving entitynot exceed $100,000,000.

Mergers, Acquisitions, Etc. None of the Borrowers or any of FILthe Company’s Subsidiaries shall amalgamate or consolidate with or merge into any other Person or permit any other Person to amalgamate or merge into them, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets or line of business or division of any other Person, except for the following: (a) The the Borrowers and FILthe Company’s Subsidiaries may amalgamate or merge with each other and with any other Person permitted to be acquired as a new Subsidiary under clause (b) below, provided that provided, that, (i) (A) in any such amalgamation or merger involving any Borrowerthe Company, such Borrower the Company is the surviving Person and Person, (B) in any such amalgamation or merger involving any Borrower (other than the Company), such Borrower is the surviving Person and (C) 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 Borrowers and FILthe Company’s Subsidiaries may acquire any Person as a new Subsidiary or all or substantially all of the assets of any Person or line of business or division of any Person, provided provided, that: (i) No no Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition; (ii) Such such Person (or line or division) is not primarily engaged in any business substantially different from (A) the present business of the Company or any Subsidiary (other than any such acquired Subsidiary) or (B) any business reasonably related or ancillary thereto; and (iii) In in the case of an acquisition of a Person as a new Subsidiary, the Borrowers or FILthe Company’s Subsidiaries possess the power to direct or cause the direction of the management and policies of such Person; and (c) Any any of FILthe Company’s Subsidiaries may amalgamate or consolidate with or merge into any other Person or permit any other Person to merge into them in connection with a sale, transfer or other disposition of assets permitted under Section 7.03 or in connection with a joint venture Investment permitted under Section 7.05, provided that provided, that, to the extent any Loan Party is a party to any such joint venture, such Loan Party shall be the surviving entity.