Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except: (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor; (b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that: (i) no Default or Event of Default has occurred and is continuing or would result from such acquisition; (ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way; (iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens; (iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15; (v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition; (vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent; (vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition; (viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full; (ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent; (x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary; (xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or ; (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower; and (c) any asset or stock or other equity interest acquisition by the Borrower or any of its Subsidiaries of Persons in the same or similar line of business as the Borrower (a “Permitted Acquisition”) where (1) the Borrower has notified the Administrative Agent of such Permitted Acquisition; (2) the business to be acquired would not subject the Administrative Agent or the Lenders to any additional regulatory or third party approvals in connection with the exercise of its rights and remedies under this Credit Agreement or any other Loan Document; (3) no contingent liabilities will be incurred or assumed in connection with such Permitted Acquisition which could reasonably be expected to have a Material Adverse Effect, so long and any Indebtedness incurred or assumed in connection with such Permitted Acquisition shall have been permitted to be incurred or assumed pursuant to Section 9.1 hereof; (4) the Borrower has provided the Administrative Agent with such other information as in each case was reasonably requested by the surviving Subsidiary is a Guarantor;
Administrative Agent; (b5) after the Revert Date upon prior written notice consummation of the Permitted Acquisition (other than with respect to the Administrative Agenta Joint Venture), the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all was a stock acquisition, the Person so acquired is merged with and into the Borrower or substantially all its Subsidiary, with the Borrower or such Subsidiary, as the case may be, being the survivor of such merger; (6) the board of directors and the shareholders (if required by applicable law), or the equivalent, of each of the Borrower and the Person to be acquired has approved such merger, consolidation or acquisition and such Permitted Acquisition is otherwise considered “friendly”; (7) if the Permitted Acquisition is of a radio broadcastingSignificant Subsidiary, television broadcasting the Borrower complies with the requirements of Section 8.11 hereof with respect to the Significant Subsidiary so acquired; and (8) the Borrower has delivered to the Administrative Agent and the Lenders a certificate of the chief financial officer or publishing business or business unit thereoftreasurer of the Borrower (A) to the effect that the Borrower and its Subsidiaries, provided that:
on a consolidated basis, will be solvent upon the consummation of the Permitted Acquisition; (iB) certifying and attaching a pro forma Compliance Certificate evidencing compliance with Section 10 hereof immediately prior to and immediately after giving effect to such Permitted Acquisition, and fairly presenting the financial condition of the Borrower and its Subsidiaries as of the date thereof and after giving effect to such Permitted Acquisition; and (C) to the effect that no Default or Event of Default has occurred and is continuing then exists or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionAcquisition.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Mergers and Acquisitions. The Borrower will not, and nor will not the Borrower permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:agree
(ai) upon the Borrower has provided the Agent with five (5) Business Days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and the material documents, agreements and instruments to be entered into in connection with such Permitted Acquisition; (ii) the business to be acquired would not subject the Banks or the Agent to regulatory or third party approvals in connection with the exercise of their rights and remedies under this Credit Agreement or any other Loan Documents; (iii) the business and assets so acquired shall be acquired by the Borrower or such Subsidiary free and clear of all liens (other than as permitted by (S)10.2 hereof) and all Indebtedness (other than as permitted by (S)10.1 hereof); (iv) the Borrower or such Subsidiary has taken all necessary actions to grant to the Administrative Agent a first priority perfected lien on all assets and stock to be acquired in connection with such Permitted Acquisition (other than Permitted Liens) and, to the extent applicable, has provided the Agent with all documents, agreements and information required pursuant to (S)9.13 hereof; (v) the Borrower has demonstrated to the reasonable satisfaction of the Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or that the Leverage Ratio as at the most recent fiscal quarter end is less than 4.50:1 and (B) License Subsidiaries of based on a pro forma Compliance --- ----- Certificate, compliance with (S)11 hereof on a Pro Forma Basis immediately prior to and after giving effect to such Permitted Acquisition, including, that the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
Leverage Ratio remains less than 4.50:1 after giving effect to such Permitted Acquisition; and (b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(ivi) no Default or Event of Default has occurred and is continuing or would exist as a result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such Permitted Acquisition; (d) the merger or consolidation of one or more of the Subsidiaries of the Borrower with and into the Borrower, or (e) the merger or consolidation of two (2) or more Subsidiaries of the Borrower. In addition, in the event any new Subsidiary is formed as a result of or in connection with any acquisition, all covenants contained herein will be satisfied on such new Subsidiary shall (unless such new Subsidiary is an Immaterial Subsidiary), simultaneously with such acquisition, become a Pro Forma Basis guarantor of the Obligations and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken grant to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders Agent and the Administrative Agent, Banks a first priority perfected security interest in lien on all of its assets. In the assets so acquired event any new Domestic Subsidiary (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(ivan Immaterial Subsidiary) is formed as a result of or in the event of a stock connection with any acquisition, simultaneously therewith, the acquired Person Loan Documents shall become a wholly-owned Subsidiary of the Borrower and shall comply with be amended and/or supplemented as necessary to make the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business Loan Documents applicable to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in Subsidiary. In the case of any acquisition involving domestic radio the Borrower forming or television purchasing such Domestic Subsidiary, such Domestic Subsidiary (other than an Immaterial Subsidiary) shall become a guarantor hereunder, and shall grant to the Agent for the benefit of the Banks a perfected, first priority security interest in its assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts Security Agreement and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionother Security Documents.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Petro Stopping Centers Holdings Lp), Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Mergers and Acquisitions. The None of the Borrowers or the Non-Borrower will notSubsidiaries shall, and will not permit any of its Subsidiaries todirectly or indirectly, become a party to any merger, amalgamation amalgamation, or consolidation, or agree to or effect any asset acquisition or stock acquisition, acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices or enter into any LMA Agreement, except:
(athe acquisition of Excluded Subsidiaries permitted under Section 7.02(j)) upon prior written notice to the Administrative Agent, except the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, asset or stock acquisitions between Borrowers and except as otherwise provided in each case to this Section 7.04(a). The Borrowers and the extent such acquisition would involve Non-Borrower Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock or other equity interests of any other Person (a radio broadcasting, television broadcasting or publishing business or business unit thereof, “Permitted Acquisition”) provided that:
(i) the Borrowers are in current compliance with and, giving effect to the proposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in compliance with all of its covenants and agreements contained in this Agreement, including the financial covenants in Section 7.11 hereof on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement;
(ii) at the time of such acquisition, no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F heretocontinuing, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents acquisition will not be impaired in otherwise create a Default or an Event of Default hereunder (including by way of cross-default to any wayother Indebtedness that would constitute an Event of Default hereunder);
(iii) the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto (e.g., non-hazardous solid waste collection, transfer, hauling, recycling, or disposal);
(iv) the business to be acquired operates predominantly in the United States or Canada;
(A) in the case of an asset acquisition, all actions have been taken of the assets acquired shall be acquired by an existing Borrower or a newly-created wholly-owned Subsidiary of the Parent, which, if it is a U.S. Subsidiary, shall become a Borrower hereunder in accordance with Section 6.19, and 100% of the Equity Interests issued by such U.S. Subsidiary and its assets (subject to the reasonable satisfaction provisions of Section 10.15 with respect to Real Property and Motor Vehicles) and shall be pledged simultaneously with such acquisition to the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Agents in accordance with Section 10.15, (B) in the case of an acquisition of Equity Interests of a U.S. company, the acquired company, simultaneously with such acquisition, shall become a Borrower in accordance with Section 6.19 and 100% of its Equity Interests and its assets shall be pledged simultaneously with such acquisition to the Administrative Agent, a first priority perfected security interest in all Agent for the benefit of the assets so Lenders and the Agents or the acquired company shall be merged or amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such newly-acquired or newly-created Subsidiary shall otherwise comply with the provisions of Section 6.19 hereof; or (excluding any Excluded AssetsC) pursuant in the case of acquisition of Equity Interests of a foreign Person that, in connection therewith, becomes a Foreign Subsidiary, the acquiring Borrower shall pledge the capital stock or other Equity Interests of such Foreign Subsidiary simultaneously with such acquisition to the Security Documents, free Administrative Agent for the benefit of the Lenders and the Agents (provided that not more than 65% of the total voting power of all Liens outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to be pledged).
(vi) if the total consideration in connection with any such acquisition, including the aggregate amount of all liabilities assumed, but excluding the payment of all fees and expenses relating to such purchase, exceeds the Threshold Amount, then not later than Permitted Liens;
seven (7) days prior to the proposed acquisition date, the Borrowers shall furnish the Administrative Agent with (i) a copy of the purchase agreement, (ii) its audited (if available, or otherwise unaudited) financial statements for the preceding two (2) fiscal years or such shorter period of time as such entity or division has been in existence, (iii) a summary of the Borrowers’ results of their standard due diligence review, (iv) in the event case of a stock acquisitionlandfill acquisition or if the target company owns a landfill, the acquired Person shall become a wholly-owned Subsidiary review by a Consulting Engineer and a copy of the Borrower and shall comply with the terms and conditions set forth in §9.15;
Consulting Engineer’s report, (v) a Compliance Certificate demonstrating compliance with Section 7.11 hereof on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement, (vi) written evidence that the board of directors and (if required by applicable lawApplicable Law) the shareholders, or the equivalent thereof, of the business to be acquired has have approved such acquisition;
, and (vivii) all of the Borrower’s and/or its Subsidiaries’ (such other information as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance may reasonably request, which in full of the Obligations, pursuant to Collateral Assignments of Contracts each case shall be in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vii) in the case board of any acquisition involving domestic radio directors and (if required by Applicable Law) the shareholders, or television assetsthe equivalent thereof, of the FCC business to be acquired shall have issued orders approving or consenting to approved such acquisition;
(viii) if such acquisition is made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of the Parent (which may be the acquired company) which shall become a Borrower in connection with such merger, shall be the surviving entity, except with respect to an Excluded Subsidiary or Non-Borrower Subsidiary; provided, that if the surviving entity is a Foreign Subsidiary, the applicable Borrower shall have delivered pledge the capital stock or other Equity Interests of each Foreign Subsidiary simultaneously with such merger or amalgamation to the Administrative Agent evidence reasonably satisfactory for the benefit of the Lenders and the Agents (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any first-tier Foreign Subsidiary of a Borrower shall be required to the Administrative Agent that all liens be so pledged and encumbrances with respect no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to the properties and assets be so acquired, other than Permitted liens, have been discharged in full;pledged); and
(ix) cash consideration to be paid by any Borrower in connection with any acquisition or series of related acquisitions (including cash deferred payments, contingent or otherwise, and the Borrower aggregate amount of all Indebtedness assumed or, in the case of an acquisition of Equity Interests, including all Indebtedness of the target company) shall have delivered to not exceed $20,000,000 without the consent of the Administrative Agent (A) evidence satisfactory to and the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionRequired Lenders.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Mergers and Acquisitions. The None of AmeriKing, Holdings nor the ------------------------ Borrower will, nor will not, and will not any of them permit any of its their respective Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of AmeriKing (other than the Borrower), Holdings (other than the Borrower) or the Borrower with and into its parent provided, that the Borrowersurvivor of such merger may not be an -------- Unrestricted Subsidiary, or (b) the merger or consolidation of two or more Subsidiaries of AmeriKing, Holdings (2other than the Borrower) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case provided that the surviving survivor of such merger may not be an -------- Unrestricted Subsidiary is a Guarantor;
unless the merger involves only Unrestricted Subsidiaries, (bc) after development by the Revert Date upon prior written notice to Borrower of those BKC Restaurants listed on Schedule 9.5.1, (d) acquisitions or development by the Administrative Agent, Borrower -------- ----- or any Restricted Subsidiary of the acquisition (whether pursuant to an Asset Swap or otherwise) assets and businesses of stockBKC Restaurants, or other securities of, real estate upon which a restaurant is located or any assets of, any Person, in each case is intended to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereofbe located, provided that:
(i) such acquisitions and/or developments -------- can be made in accordance with (S)9.18, (ii) the expenditures for such acquisitions can be made in accordance with (S)10.5, (iii) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to exists at the consummation time of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, acquisition or after giving effect to such acquisitionthereto, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereofRestricted Subsidiary, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, has taken all necessary actions to and under each contract and agreement entered into grant to the Agent a first priority perfected lien in such assets other than those assets which are not permitted to be encumbered by any Franchise Agreement or lease affecting such Person restaurant. In the event any new Restricted Subsidiary is formed as a result of or in connection with such any acquisition or development, the Revolver Loan Documents shall be amended and/or supplemented as necessary to make the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment terms and performance in full conditions of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting Revolver Loan Documents applicable to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Restricted Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
Appears in 1 contract
Mergers and Acquisitions. The Borrower Borrowers will not, and will not permit any of its their Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, acquisition except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing continuing, or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, exist after giving effect to such acquisitionthereto:
(a) the merger of one or more of the Subsidiaries of the Company with and into the Company, all covenants contained herein will be satisfied on any other Borrower hereunder or a Pro Forma Basis Guarantor hereunder, and that provided the Borrower’s ability to satisfy its payment obligations hereunder and under Company, the other Loan Documents will not Borrower or the Guarantor, as the case may be, has taken or caused to be impaired in any way;
(iii) taken all actions have been taken action necessary to grant to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the Company's or such other Borrower's or Guarantor's assets so after such merger; and
(b) the acquisition of the assets or stock of Persons in the same or a similar line of business as the Company and its Subsidiaries (including home electrical and other consumer appliances and products) (each, a "Permitted Acquisition") where (i) the Company has provided the Agent with thirty (30) days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and copies of all acquisition documents in connection therewith; (ii) the business to be acquired would not subject the Agent or the Banks to regulatory or third party approvals in connection with the exercise of their rights and remedies under this Credit Agreement or any other Loan Document; (excluding iii) no contingent liabilities or liabilities will be incurred or assumed in connection with such Permitted Acquisition which could be expected to have a Material Adverse Effect, and any Excluded AssetsIndebtedness incurred or assumed in connection with such Permitted Acquisition (1) shall have been permitted to be incurred or assumed pursuant to ss.9.1 hereof; (2) shall not bear cash interest at a rate in excess of 600 basis points over the Security Documents, free applicable treasury rate per annum and shall not bear interest at a rate in excess of all Liens other than Permitted Liens;
900 basis points over the applicable treasury rate per annum; (3) shall not have a maturity prior to the Revolving Credit Loan Maturity Date; (4) shall not contain any financial covenants; (5) shall be unsecured; (6) shall contain an amortization schedule acceptable to the Agent and (7) shall contain subordination provisions acceptable to the Agent and the Banks; provided that any such Indebtedness permitted by ss.9.1(g)(ii) shall not have to comply with clauses (2)-(7) hereof; (iv) in the event of a stock acquisition, Company has provided the acquired Person shall become a wholly-owned Subsidiary of Agent with such other information as was reasonably requested by the Borrower and shall comply with the terms and conditions set forth in §9.15;
Agent; (v) after the consummation of the Permitted Acquisition, the Company shall own a majority of the capital stock of the Person to be acquired or shall otherwise control such Person (including, without limitation, controlling the ability of such Person to make loans, advances and Distributions in cash to the Company); (vi) the Company shall take, or shall cause to be taken, all necessary action to grant to the Agent a first priority perfected lien in all assets and stock acquired in connection with such Permitted Acquisition, with such exceptions as the Agent may approve; provided, however, the Company or any Guarantor, as the case may be, shall only be required to pledge 66% of the capital stock of any Foreign Subsidiary or any other Person not incorporated or otherwise organized in the United States of America (a "Foreign Entity"), and such Foreign Entity shall not be required to xxxxx x xxxx on its assets to secure the Obligations of the Company or any Guarantor; (vii) the Company has demonstrated to the reasonable satisfaction of the Agent, based on a pro forma Compliance Certificate, compliance with ss.10 immediately prior to and on a Pro Forma Basis immediately after giving effect to such Permitted Acquisition and the Leverage Ratio (calculated on a Pro Forma Basis) after giving effect to such Permitted Acquisition shall not exceed 5.50:1.00; (viii) the maximum amount of the proceeds of the Revolving Credit Loans to be used for any single Permitted Acquisition or series of Permitted Acquisitions relating to the same business organization or group of related companies does not exceed the sum of $40,000,000 plus the aggregate amount of secured Indebtedness assumed in connection with such Permitted Acquisition; (ix) board of directors and the shareholders (if required by applicable law) the shareholders), or the equivalent thereofequivalent, of each of the business Company and the Person to be acquired has approved such acquisition;
merger, consolidation or acquisition and such Permitted Acquisition is otherwise considered "friendly"; (vix) all of to the Borrower’s and/or its Subsidiaries’ (as extent the case may be) rights and interests in, to and under each contract and agreement entered into by such Person Company or any Subsidiary is acquiring any Real Estate in connection with such acquisition Permitted Acquisition, the Company shall have delivered to the extent permitted have been assigned Agent all appraisals and environmental site assessments which the Agent shall reasonably require, with all such appraisals and site assessments to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts be in form and substance reasonably satisfactory to Administrative the Agent;
; and (vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viiixi) the Borrower shall have Company has delivered to the Administrative Agent evidence reasonably satisfactory a certificate of the chief financial officer of the Company to the Administrative Agent effect that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix1) the Borrower shall have delivered to Company will be solvent upon the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms consummation of the contracts Permitted Acquisition; (2) the pro forma Compliance Certificate fairly presents the financial condition of the Company and agreements entered into by such Person in connection with such acquisition, its Subsidiaries as of the date thereof and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such Permitted Acquisition; and (3) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition. In the event any new Domestic Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Domestic Subsidiary shall, immediately upon its creation or acquisition, execute and deliver to the Agent for the benefit of the Agent and the Banks, an Instrument of Adherence in substantially the form of Exhibit D hereto (an "Instrument of Adherence") and the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Domestic Subsidiary. Such Domestic Subsidiary shall become a Guarantor hereunder and shall become party to the Guaranty and the Security Agreement and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Domestic Subsidiary's assets. The Company and its Subsidiaries shall, immediately upon the creation or acquisition of such Domestic Subsidiary, pledge all of such Domestic Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks. In the event any new Foreign Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Foreign Subsidiary shall, immediately upon its creation or acquisition, and to the extent legally possible in its jurisdiction of organization and to the extent that to do so would not result in the recognition of a deemed dividend from such Foreign Subsidiary, execute and deliver to the Agent for the benefit of the Agent and the Banks such guarantees and security documents as the Agent deems necessary to make the terms and conditions of the Loan Documents applicable to such Foreign Subsidiary. To the extent legally permissable, and to the extent that to do so would not result in the recognition of a deemed dividend from such Foreign Subsidiary, such Foreign Subsidiary shall guarantee the Obligations of the Subsidiary Borrowers hereunder and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Foreign Subsidiary's assets to secure its guarantee obligations. In addition, the Company and its Subsidiaries shall (unless otherwise previously agreed to in writing by the Agent), immediately upon the creation or acquisition of such Foreign Subsidiary, pledge 66% of such Foreign Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks.
Appears in 1 contract
Mergers and Acquisitions. The Neither Holdings nor the Borrower will notwill, and neither will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of Holdings (other than the Borrower) or the Borrower with and into its parent provided, that the Borrowersurvivor of such merger may not be an Unrestricted Subsidiary, or (b) the merger or consolidation of two or more Subsidiaries of Holdings (2other than the Borrower) or more wholly-owned the Borrower, provided that the survivor of such merger may not be an Unrestricted Subsidiary unless the merger involves only Unrestricted Subsidiaries, (Ac) Operating Subsidiaries acquisitions by Holdings or (B) License any of its Unrestricted Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap assets and businesses of BKC Restaurants or otherwise) of stockother restaurants, or other securities of, real estate upon which a restaurant is located or is intended to be located and (d) acquisitions by the Borrower or any of its Subsidiaries of the assets of, any Person, in each case to and businesses of BKC Restaurants or other quick service restaurants (the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
"Permitted Acquisitions") where (i) no Default or Event of Default has occurred and or is continuing or would result from such acquisition;
exist after giving effect thereto; (ii) not less than five the Borrower has provided the Agent with prior written notice of such acquisition; (5iii) Business Days prior in the event any new Restricted Subsidiary is formed or acquired as a result of or in connection with any acquisition or development, such Restricted Subsidiary shall become a guarantor of the Obligations pursuant to a guaranty in form and substance satisfactory to the consummation Agent, and the Borrower or Subsidiary which is the parent of such proposed acquisitionRestricted Subsidiary, as the case may be, shall pledge to the Agent the non-voting capital stock of such Restricted Subsidiary; (iv) the Borrower shall have delivered or the Restricted Subsidiary, as the case may be, has taken all necessary actions to grant to the Administrative Agent a duly executed certificate substantially first priority perfected lien in the form of Exhibit F heretosuch assets other than those assets which are not permitted to be encumbered by any Franchise Agreement or lease affecting such restaurant or which secure purchase money Indebtedness permitted pursuant to (S)9.1(g), and upon the Administrative Agent’s request, such financial projections as shall be necessaryand, in the reasonable judgment case of an Unrestricted Subsidiary, such Unrestricted Subsidiary has taken all necessary action to grant to the Administrative Agent, Agent a perfected lien on the non-voting capital stock of its Subsidiaries pursuant to demonstrate that, the requirements of (S)6.1 hereof; (v) the Borrower has demonstrated to the Agent based on a pro forma Compliance Certificate covenant compliance with (S)10 on a Pro Forma Basis immediately prior to and after giving effect to such acquisition; (vi) any acquisition-related Indebtedness would not violate the restrictions on Indebtedness set forth in (S)9.1; (vii) immediately after giving effect to such acquisition, the Total Commitment exceeds the sum of (1) the aggregate outstanding Revolving Credit Loans plus (2) the Maximum Drawing Amount plus (3) all covenants contained herein will be satisfied Unpaid Reimbursement Obligations by at least $2,500,000; (viii) the Borrower has demonstrated to the satisfaction of the Agent that the Leverage Ratio of Holdings and its Subsidiaries on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, immediately prior to and under each contract and agreement entered into by such Person in connection with after giving effect to such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment does not exceed 5.50:1.00; and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered has demonstrated to the Administrative Agent (A) evidence satisfactory to satisfaction of the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition revenues of all restaurants to be acquired in accordance with the terms any Permitted Acquisition does not exceed thirty three and one- third percent (33 1/3%) of the contracts and agreements entered into by such Person Borrower's revenues prior to the proposed acquisition, determined on a Pro Forma Basis. In the event any new Restricted Subsidiary is formed as a result of or in connection with any acquisition or development, the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such acquisitionRestricted Subsidiary. In the case of Holdings forming such Subsidiary, such Subsidiary shall become a Borrower hereunder, and (B) certified copies in the case of all the Borrower forming such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with Restricted Subsidiary, such acquisition Restricted Subsidiary shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionguarantor hereunder.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
(c) other media-related acquisitions not included in clause (b) above, provided that (i) so long as the Total Leverage Ratio calculated on a Pro Forma Basis after giving effect to such acquisition is greater than 6.00:1.00, the aggregate purchase price for all such acquisitions, whether payable in cash or otherwise, shall not exceed $100,000,000, and (ii) each of the conditions set forth in clause (b)(i) through (xi) above shall have been satisfied;
(d) the Borrower or any of its Subsidiaries may enter into LMA Agreements provided that (i) at the time the Borrower or such Subsidiary enters into an LMA Agreement, no Default or Event of Default has occurred and is then continuing or could reasonably be expected to result as a consequence of entering into such LMA Agreement, (ii) if (A) the Borrower or any of its Subsidiaries has acquired an option to acquire a Station or is otherwise obligated to purchase a Station in connection with such LMA Agreement or in a related transaction or (B) such LMA Agreement is material as determined in the reasonable judgment of the Administrative Agent after consultation with the Borrower, then, in each case, all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each such LMA Agreement shall have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance satisfactory to Administrative Agent, (iii) if such LMA Agreement contemplates a Station acquisition, such Station acquisition must satisfy the provisions of clause (b) above; provided that, if such LMA Agreement grants the Borrower or such Subsidiary an option to purchase a Station, the relevant date for determining whether the provisions of clause (b) above have been satisfied with respect to such acquisition shall be a date not earlier than five (5) Business Days prior to the date on which the Borrower or such Subsidiary proposes to exercise such option, with the intent that this clause (iii) shall not operate to prevent the Borrower or such Subsidiary from entering into such LMA Agreement if all of the other conditions of this clause (d) have been satisfied, save that the provisions of clause (b) cannot be satisfied with respect to such optional acquisition on the date of the Borrower’s or such Subsidiary’s entry into such LMA Agreement, (iv) if such LMA Agreement contemplates an Asset Sale or Asset Swap, such Asset Sale or Asset Swap is otherwise permitted pursuant to §10.5 hereof, (v) such LMA Agreement is with a non-Affiliate third party and on fair and reasonable terms substantially similar to those that would be obtained in comparable arm’s length transactions and (vi) the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto; and
(e) any Investments permitted under §10.3.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary Borrower provided if only one such Person is a Guarantor;
, then the Guarantor shall be the survivor, and (bc) after any merger or asset or stock acquisition by the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, Borrower or any assets of, any Personof its Subsidiaries of Persons (or, in each the case to the extent such acquisition would involve all or substantially all of an asset acquisition, assets of a radio broadcasting, television broadcasting Person) in the same or publishing similar line of business or business unit thereof, provided thatas the Borrower (a “Permitted Acquisition”) so long as:
(i) no Default or Event the Borrower has provided the Agent with thirty (30) days prior written notice of Default has occurred and is continuing or would result from such acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of each of the business Borrower or the applicable Subsidiary and of the Person to be acquired has approved such merger, consolidation or acquisition;
(viiii) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person any Indebtedness incurred or assumed in connection with such acquisition to the extent permitted Permitted Acquisition (including, without limitation, any assumed Indebtedness, earnout arrangements, seller Indebtedness and non-compete payments) shall have been assigned permitted to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, be incurred or assumed pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent§9.1;
(viiiv) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
not less than ten (viii10) the Borrower shall have delivered Business Days prior to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms consummation of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such proposed acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b(A) and an updated Schedule 8.21 evidence reasonably satisfactory to this Credit Agreementthe Agent that the Person (or assets, as applicablethe case may be) to be acquired had a positive unadjusted EBITDA for the most recent fiscal quarter and had a positive unadjusted EBITDA for the most recent period of four consecutive fiscal quarters most recently ended, as demonstrated by audited financial statements (or, to the extent such Person so acquired has no audited historical financial results or the Permitted Acquisition occurs at a time when audited historical financial statements are not available, the management prepared financial results of such Person so acquired), provided, however, in each case, in the event that either no historical financial results are available with respect to the Person to be acquired, the Person to be acquired is not a separate legal entity, the Borrower or Subsidiary effecting the acquisition is acquiring only assets of another Person or, in the Agent’s reasonable discretion it determines the historical financial results do not adequately reflect the financial results of the Person or assets to be acquired, such calculations shall be made with reference to reasonable estimates of such past performance made by the Borrower based on existing data and other available information, such estimates to be reasonably acceptable in all respects to the Agent and the Majority Banks; (B) a Compliance Certificate prepared on a pro forma basis demonstrating compliance with the financial covenants set forth in §10 hereof both before and after giving effect to such Permitted Acquisition (provided, that any adjustments made to the actual historical EBITDA of the Person to be acquired shall be approved by the Agent and the Majority Banks); and (C) a certificate from the chief financial officer of the Borrower to the effect that (1) the Borrower on a consolidating basis, and the Borrower and its Subsidiaries, on a consolidated basis, will be solvent both before and after consummating the Permitted Acquisition and (2) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition;
(v) in the event of a stock acquisition, the Person so acquired shall become a wholly owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §8.14;
(vi) the business to be acquired would not subject the Agent or any Bank to regulatory or third party approvals in connection with the exercise of any of its rights and remedies under this Credit Agreement or any other Loan Document;
(vii) no contingent obligations or liabilities will be incurred or assumed in connection with such acquisition which could reasonably be expected to have a Material Adverse Effect;
(viii) all assets acquired in connection with such Permitted Acquisition shall be subject to a first priority perfected security interest in favor of the Agent for the benefit of the Agent and the Banks and such assets shall not be encumbered by a Lien in favor of any other Person, and all appropriate amendments to the Security Documents (or additional Security Documents, as the case may be) shall have been executed and delivered to the Agent;
(ix) the aggregate amount of the purchase price for any single acquisition or series of related acquisitions which is payable in anything other than the Capital Stock of the Borrower (and such Capital Stock shall have no redemption or repurchase rights prior to a date which is one (1) year after the Revolving Credit Loan Maturity Date and shall not have the ability to convert into any form of Indebtedness) shall not exceed $5,000,000, and the aggregate amount of the purchase price for all Permitted Acquisitions consummated over any twelve consecutive calendar month period which is payable in anything other than the Capital Stock of the Borrower (and such Capital Stock shall have no redemption or repurchase rights prior to a date which is one (1) year after the Revolving Credit Loan Maturity Date and shall not have the ability to convert into any form of Indebtedness) shall not exceed $10,000,000; and
(x) the sum of (1) the Borrowing Base Availability plus (2) cash of the Borrower, a Guarantor or any other Subsidiary organized under the laws of Canada or the United Kingdom which is on deposit in a deposit account at a financial institution located in (and such deposit account is also located in) the United States of America, Canada or the United Kingdom is not less than $12,500,000 after giving effect to any such Permitted Acquisition, provided, however, for purposes of computing the amount of cash on deposit of any Subsidiary organized under the laws of Canada or the United Kingdom, the Borrower shall be permitted to include the account balances as of the most recent calendar month end if the Borrower or such Subsidiary does not have a more recent calculation. In the event any new Domestic Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Domestic Subsidiary shall, immediately upon its creation or acquisition, execute and deliver to the Agent for the benefit of the Agent and the Banks, an Instrument of Adherence in substantially the form of Exhibit H hereto (an “Instrument of Adherence”) and the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Domestic Subsidiary. Such Domestic Subsidiary shall become a Guarantor hereunder and shall become party to the Guaranty and the Security Agreement and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Domestic Subsidiary’s assets to the extent required by the Loan Documents. The Borrower and its Subsidiaries shall, immediately upon the creation or acquisition of such Domestic Subsidiary, pledge all of such Domestic Subsidiary’s capital stock to the Agent for the benefit of the Agent and the Banks. In addition, to the extent any Foreign Subsidiary is acquired or created after the Closing Date which the Agent in its sole and absolute discretion determines to be either a material Subsidiary or is a Subsidiary which the Agent reasonably believes has significant value, the Borrower and its Subsidiaries shall, immediately upon the request of the Agent, pledge 65% of such Foreign Subsidiary’s capital stock to the Agent for the benefit of the Agent and the Banks.
Appears in 1 contract
Mergers and Acquisitions. The Borrower Borrowers will not, and will not permit any of its their Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, acquisition except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing continuing, or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, exist after giving effect to such acquisitionthereto:
(a) the merger of one or more of the Subsidiaries of the Company with and into the Company, all covenants contained herein will be satisfied on any other Domestic Borrower hereunder or a Pro Forma Basis Guarantor hereunder, and that provided the Borrower’s ability to satisfy its payment obligations hereunder and under Company, the other Loan Documents will not Domestic Borrower or the Guarantor, as the case may be, has taken or caused to be impaired in any way;
(iii) taken all actions have been taken action necessary to grant to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the Company's or such other Domestic Borrower's or Guarantor's assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liensafter such merger;
(b) the acquisition of the assets or stock of Persons in the same or a similar line of business as the Company and its Subsidiaries (including home electrical and other consumer appliances, industrial electrical products and other similar products) (each, a "Permitted Acquisition") where (i) the Company has provided the Agent with thirty (30) days prior written notice of such, Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and copies of all acquisition documents in connection therewith; (ii) the business to be acquired would not subject the Agent or the Banks to regulatory or third party approvals in connection with the exercise of their rights and remedies under this Credit Agreement or any other Loan Document; (iii) no contingent liabilities or liabilities will be incurred or assumed in connection with such Permitted Acquisition which could be expected to have a Material Adverse Effect, and any Indebtedness incurred or assumed in connection with such Permitted Acquisition (1) shall have been permitted to be incurred or assumed pursuant to ss.9.1 hereof; (2) shall not bear cash interest at a rate in excess of 600 basis points over the applicable treasury rate per annum and shall not bear interest at a rate in excess of 900 basis points over the applicable treasury rate per annum; (3) shall not have a maturity prior to the Term Loan B Maturity Date; (4) shall not contain any financial covenants; (5) shall be unsecured; (6) shall contain an amortization schedule acceptable to the Agent and (7) shall contain subordination provisions acceptable to the Agent and the Banks; provided that any such Indebtedness permitted by ss.9.1(g)(ii) shall not have to comply with clauses (2)-(7) hereof; (iv) in the event of a stock acquisition, Company has provided the acquired Person shall become a wholly-owned Subsidiary of Agent with such other information as was reasonably requested by the Borrower and shall comply with the terms and conditions set forth in §9.15;
Agent; (v) after the consummation of the Permitted Acquisition, the Company shall own a majority of the capital stock of the Person to be acquired or shall otherwise control such Person (including, without limitation, controlling the ability of such Person to make loans, advances and Distributions in cash to the Company); (vi) the Company shall take, or shall cause to be taken, all necessary action to grant to the Agent a first priority perfected lien in all assets and stock acquired in connection with such Permitted Acquisition, with such exceptions as the Agent may approve; provided, however, the Company or any Guarantor, as the case may be, shall only be required to pledge 66% of the capital stock of any Foreign Subsidiary or any other Person not incorporated or otherwise organized in the United States of America (a "Foreign Entity"), and such Foreign Entity shall not be required to grant a lien on its assets to secure the Obligatioxx xx xxx Xxmpany or any Guarantor; (vii) the Company has demonstrated to the reasonable satisfaction of the Agent, based on a pro forma Compliance Certificate, compliance with ss.10 immediately prior to and on a Pro Forma Basis immediately after giving effect to such Permitted Acquisition and the Leverage Ratio (calculated on a Pro Forma Basis) after giving effect to such Permitted Acquisition shall not exceed 5.50:1.00; (viii) the maximum purchase price for any single Permitted Acquisition or series of Permitted Acquisitions relating to the same business organization or group of related companies does not exceed the sum of $40,000,000, plus the aggregate cash equity investment made by the Additional Investors in the Company for the purpose of consummating such acquisition, plus the aggregate amount of secured Indebtedness assumed in connection with such Permitted Acquisition; (ix) board of directors and the shareholders (if required by applicable law) the shareholders), or the equivalent thereofequivalent, of each of the business Company and the Person to be acquired has approved such acquisition;
merger, consolidation or acquisition and such Permitted Acquisition is otherwise considered "friendly"; (vix) all of to the Borrower’s and/or its Subsidiaries’ (as extent the case may be) rights and interests in, to and under each contract and agreement entered into by such Person Company or any Subsidiary is acquiring any Real Estate in connection with such acquisition Permitted Acquisition, the Company shall have delivered to the extent permitted have been assigned Agent all appraisals and environmental site assessments which the Agent shall reasonably require, with all such appraisals and site assessments to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts be in form and substance reasonably satisfactory to Administrative the Agent;
; and (vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viiixi) the Borrower shall have Company has delivered to the Administrative Agent evidence reasonably satisfactory a certificate of the chief financial officer of the Company to the Administrative Agent effect that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix1) the Borrower shall have delivered to Company will be solvent upon the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms consummation of the contracts Permitted Acquisition; (2) the pro forma Compliance Certificate fairly presents the financial condition of the Company and agreements entered into by such Person in connection with such acquisition, its Subsidiaries as of the date thereof and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such Permitted Acquisition; and (3) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition; and
(c) The Merger as contemplated by the Merger Documents. In the event any new Domestic Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Domestic Subsidiary shall, immediately upon its creation or acquisition, execute and deliver to the Agent for the benefit of the Agent and the Banks, an Instrument of Adherence in substantially the form of Exhibit E hereto (an "Instrument of Adherence") and the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Domestic Subsidiary. Such Domestic Subsidiary shall become a Guarantor hereunder and shall become party to the Guaranty and the Security Agreement and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Domestic Subsidiary's assets. The Company and its Subsidiaries shall, immediately upon the creation or acquisition of such Domestic Subsidiary, pledge all of such Domestic Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks. In the event any new Foreign Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Foreign Subsidiary shall, immediately upon its creation or acquisition, and to the extent legally possible in its jurisdiction of organization and to the extent that to do so would not result in the recognition of a deemed dividend from such Foreign Subsidiary, execute and deliver to the Agent for the benefit of the Agent and the Banks such guarantees and security documents as the Agent deems necessary to make the terms and conditions of the Loan Documents applicable to such Foreign Subsidiary. To the extent legally permissible, and to the extent that to do so would not result in the recognition of a deemed dividend from such Foreign Subsidiary, such Foreign Subsidiary shall guarantee the Obligations of the Subsidiary Borrowers hereunder and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Foreign Subsidiary's assets to secure its guarantee obligations. In addition, the Company and its Subsidiaries shall (unless otherwise previously agreed to in writing by the Agent), immediately upon the creation or acquisition of such Foreign Subsidiary, pledge 66% of such Foreign Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Holmes Group Inc)
Mergers and Acquisitions. The Borrower Parent will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such merger, consolidation or acquisition (including, without limitation, taking into account any borrowings anticipated to be made to consummate such acquisition), (a) a merger or consolidation of two or more Borrowers so long as each entity that survives any such merger or consolidation is a Borrower, (b) a merger or consolidation of one or more of the Subsidiaries of a Borrower with and into a Borrower, so long as, in connection with any such merger or consolidation, a Borrower is the surviving entity, (c) a merger or consolidation of two or more Guarantors so long as each entity that survives any such merger or consolidation is a Guarantor, (d) a merger or consolidation of a Guarantor and a Subsidiary of the Parent (other than a Borrower) so long as each entity that survives any such merger or consolidation is a Guarantor, or (e) any merger or asset or stock acquisition by the Parent or any of its Subsidiaries of Persons (or, in the case of an asset acquisition, assets of a Person) in the same or a similar line of business as the Parent (a "Permitted Acquisition") so long as
(i) the Parent has provided the Administrative Agent with prior written notice of such acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of each of the business Parent or the applicable Subsidiary and of the Person to be acquired has approved such merger, consolidation or acquisition;
(viiii) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person any Indebtedness incurred or assumed in connection with such acquisition to the extent permitted Permitted Acquisition (including, without limitation, any assumed Indebtedness, earnout arrangements, seller Indebtedness and non-compete payments) shall have been assigned permitted to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, be incurred or assumed pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agentss.8.1;
(viiiv) in not less than five (5) days prior to the case consummation of any acquisition involving domestic radio or television assetsthe proposed acquisition, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower Parent shall have delivered to the Administrative Agent (A) evidence satisfactory a Compliance Certificate prepared on a Pro Forma Basis demonstrating (1) that the Leverage Ratio immediately after giving effect to such proposed acquisition shall not exceed 2.75:1.00 (provided, however, that the Parent shall only be required to comply with such Leverage Ratio and to deliver this certification required by this subparagraph (iv)(A)(1) to the Administrative Agent extent that the Borrower (x) the purchase price for such proposed acquisition (or series of related proposed acquisitions) is $50,000,000 or more and (y) all or any portion of the purchase price is payable in anything other than Capital Stock of the Parent (and such Subsidiary has completed such acquisition in accordance Capital Stock shall have not redemption or repurchase rights prior to a date which is one (1) year after the Revolving Credit Loan Maturity Date and shall not have the ability to convert into any form of Indebtedness) and (2) compliance with the terms of financial covenants set forth in ss.ss.
9.1 (but only for acquisitions in which the contracts Parent does not need to comply with (iv)(A)(1) above), 9.2 and agreements entered into by such Person in connection with such acquisition, 9.3 and (B) certified copies a certificate from the chief financial officer of all such documents shall have been delivered the Parent to the Administrative Agenteffect that (1) the Parent and its Subsidiaries, on a consolidated and consolidating basis, will be solvent both before and after consummating the Permitted Acquisition and (2) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition;
(xv) all FCC Licenses in the event of a stock acquisition, the Person so acquired shall become a wholly owned Subsidiary of the Parent, shall comply with the terms and conditions set forth in ss.7.15;
(vi) the business to be acquired would not subject the Administrative Agent or any Lender to regulatory or third party approvals in connection with the exercise of any of its rights and remedies under this Credit Agreement or any other Loan Document;
(vii) no contingent obligations or liabilities will be incurred or assumed in connection with such acquisition shall which could reasonably be transferred immediately upon consummation expected to have a material adverse effect on the business condition (financial or otherwise), operations, performance or properties of such acquisition to the Borrowers, individually or the Parent or its Subsidiaries, taken as a License Subsidiarywhole;
(xiviii) substantially contemporaneously with the aggregate amount of the purchase price for any single acquisition or series of related acquisitions which is payable in anything other than the Capital Stock of the Parent (and such acquisition, the Borrower Capital Stock shall have delivered no redemption or repurchase rights prior to a date which is one (1) year after the Administrative Agent an updated Schedule 8.3(bRevolving Credit Loan Maturity Date and shall not have the ability to convert into any form of Indebtedness) and an updated Schedule 8.21 to shall not exceed $75,000,000; and
(ix) the aggregate amount of the purchase price for all acquisitions over the life of this Credit Agreement, as applicable, Agreement which is payable in anything other than the Capital Stock of the Parent (and such Capital Stock shall have no redemption or repurchase rights prior to a date which is one (1) year after giving effect the Revolving Credit Loan Maturity Date and shall not have the ability to such acquisitionconvert into any form of Indebtedness) shall not exceed $150,000,000.
Appears in 1 contract
Mergers and Acquisitions. The None of the Borrowers or the Non-Borrower will notSubsidiaries shall, and will not permit any of its Subsidiaries todirectly or indirectly, become a party to any merger, amalgamation amalgamation, or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of the stock of another Person or all or substantially all the assets or a radio broadcasting, television broadcasting or publishing business or business unit thereofof another Person (other than the acquisition of assets in the ordinary course of business consistent with past practices or the acquisition of Excluded Subsidiaries to the extent permitted under Section 7.02(i)) except the merger, amalgamation or consolidation of, or asset or stock acquisitions between Borrowers and except as otherwise provided that:below in this Section 7.04(a). The Borrowers and the Non-Borrower Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or a business unit of another Person or one hundred percent (100%) of the stock or other Equity Interests of any other Person, including by merger, amalgamation or consolidation, (any transaction satisfying the requirements of this Section 7.04(a), a “Permitted Acquisition”) so long as, subject to Section 1.08 with respect to any Limited Condition Acquisition (including the Specified Acquisition):
(i) subject to Section 1.08 with respect to any Limited Condition Acquisition (including the Specified Acquisition), the Borrowers are in pro forma compliance with the financial covenants contained in Section 7.11 (including, if applicable, any Elevated Leverage Ratio Period to be elected in connection with such acquisition) after giving effect to any such acquisition and any Indebtedness incurred in connection therewith (it being understood that this requirement has been satisfied with respect to the Specified Acquisition in accordance with Section 1.08(d));
(ii) at the time of such acquisition, no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or an Event of Default hereunder (including by way of cross-default to any other Indebtedness that would result from such acquisition;
constitute an Event of Default hereunder) (ii) not less than five (5) Business Days prior it being understood that this requirement has been satisfied with respect to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections Specified Acquisition as shall be necessary, in the reasonable judgment of the Administrative Agent, Specified Acquisition Signing Date with respect to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any waySection 1.08(a))(i));
(iii) the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto (e.g., solid waste collection, transfer, hauling, recycling, disposal or organics);
(iv) the business to be acquired operates predominantly in the United States or Canada;
(A) in the case of an asset acquisition, all actions have been taken of the assets acquired shall be acquired by an existing Borrower or a newly-created wholly-owned Subsidiary of the Parent, which, if it is a Domestic Subsidiary, shall become a Borrower hereunder in accordance with and in the time periods prescribed by Section 6.20, and 100% of the Equity Interests issued by such Domestic Subsidiary and its assets (subject to the reasonable satisfaction provisions of the Administrative Agent Section 10.15 with respect to provide Real Property and Motor Vehicles) and shall be pledged to the Administrative Agent, for the benefit of the Lenders Secured Parties, in accordance with Borrower in accordance with and in the time periods prescribed by Sections 6.20 and Section 10.15, (B) in the case of an acquisition of Equity Interests of a U.S. company, the acquired company, shall become a Borrower in accordance with and in the time periods prescribed by Section 6.20 and 100% of its Equity Interests and its assets (to the extent it is Collateral) shall be pledged to the Administrative Agent, a first priority perfected security interest in all for the benefit of the assets Secured Parties, or the acquired company shall be merged or amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such newly-acquired or newly-created Subsidiary shall otherwise comply with the provisions of Section 6.20; or (C) in the case of acquisition of Equity Interests of a foreign Person that, in connection therewith, becomes a Foreign Subsidiary, the acquiring Borrower shall pledge the capital stock or other Equity Interests of such Foreign Subsidiary to the Administrative Agent, for the benefit of the Secured Parties (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary shall be required to be so acquired pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to be pledged) in accordance with and in the time periods prescribed by Section 6.20;
(vi) if the total consideration in connection with any such acquisition, including the aggregate amount of all liabilities assumed, but excluding any Excluded Assetsthe payment of all fees and expenses relating to such purchase, exceeds the Threshold Amount, then not later than seven (7) days prior to the proposed acquisition date (or such later date as the Administrative Agent may agree and, in each case of sub-clauses (i) through (vii) below of this clause (vi) unless the Administrative Agent shall otherwise agree in writing), the Borrowers shall furnish the Administrative Agent with (i) a copy of the purchase agreement, (ii) except with respect to the Specified Acquisition, its audited (if available, or otherwise unaudited) financial statements for the preceding two (2) fiscal years or such shorter period of time as such entity or division has been in existence or otherwise approved by the Administrative Agent, and with respect to the Specified Acquisition, an unaudited pro forma consolidated model of the Parent and its consolidated subsidiaries (giving pro forma effect to the Specified Acquisition) as of and for the twelve-month period ending with the latest quarterly period of the Parent covered by the latest financials of Parent required to be delivered pursuant to Section 6.04(b) above, and a third party financial diligence memo related to the Security DocumentsSpecified Acquisition Targets dated March 30, free 2023 from an audit firm retained by the Parent, (iii) a summary of all Liens other than Permitted Liens;
the Borrowers’ or their counsel’s results of their standard due diligence review (which requirement shall be deemed satisfied with respect to the Specified Acquisition), (iv) in the event case of a stock acquisitionlandfill acquisition or if the target company owns a landfill, the acquired Person shall become a wholly-owned Subsidiary review by a Consulting Engineer and a copy of the Borrower and shall comply with the terms and conditions set forth in §9.15;
Consulting Engineer’s report, (v) except with respect to the Specified Acquisition, a Compliance Certificate demonstrating compliance with Section 7.11 (after giving effect to any Elevated Leverage Ratio Period elected in connection with such acquisition) on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement, (vi) written evidence that the board of directors and (if required by applicable lawApplicable Law) the shareholders, or the equivalent thereof, of the business to be acquired has have approved such acquisition;
, and (vivii) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection except with such acquisition respect to the extent permitted have been assigned to Specified Acquisition, such other information as the Administrative Agent as security for the irrevocable payment and performance may reasonably request, which in full of the Obligations, pursuant to Collateral Assignments of Contracts each case shall be in form and substance reasonably acceptable to the Administrative Agent; provided, that in the case of the Specified Acquisition (x) the Borrowers shall not be required to deliver the pro forma Compliance Certificate or the financial statements required by this clause (vi) (it being understood that the provisions of Section 1.08 and any applicable Specified Acquisition Loan Joinder shall control in the case of the Specified Acquisition) and (y) all deliveries pursuant to sub-clause (vii) that are subject Administrative Agent’s approval with respect to the Specified Acquisition shall be deemed in form and substance satisfactory to the Administrative Agent;
(vii) in the case board of any acquisition involving domestic radio directors and (if required by Applicable Law) the shareholders, or television assetsthe equivalent thereof, of the FCC business to be acquired shall have issued orders approving or consenting to approved such acquisition;; and
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed if such acquisition in accordance with the terms is made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of the contracts and agreements entered into by such Person Parent (which may be the acquired company) which shall become a Borrower in connection with such acquisitionmerger, and shall be the surviving entity, except with respect to an Excluded Subsidiary or Non-Borrower Subsidiary; provided, that if the surviving entity is a Foreign Subsidiary, the applicable Borrower shall pledge the capital stock or other Equity Interests of each Foreign Subsidiary within 30 Business Days (Bor such later date as the Administrative Agent may agree) certified copies of all such documents shall have been delivered merger or amalgamation to the Administrative Agent;
, for the benefit of the Secured Parties (x) provided that not more than 65% of the total voting power of all FCC Licenses acquired in connection with such acquisition outstanding capital stock or other Equity Interest of any first-tier Foreign Subsidiary of a Borrower shall be transferred immediately upon consummation required to be so pledged and no Equity Interests of such acquisition any non-first-tier Foreign Subsidiary shall be required to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionbe so pledged).
Appears in 1 contract
Samples: Specified Acquisition Loan Joinder (Casella Waste Systems Inc)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(ai) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as or (ii) the mergers and consolidations to be consummated in each case the surviving Subsidiary is a GuarantorReorganization permitted by ss.22;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent Initial Agents a duly executed certificate substantially in the form of Exhibit F G hereto, and upon the Administrative Agent’s request, together with such financial projections as shall be necessary, in the reasonable judgment of the Administrative AgentInitial Agents, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s 's ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded AssetsAssets and non-material assets which the Administrative Agent agrees may be excluded) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15ss.10.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s 's and/or its Subsidiaries’ ' (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b9.3(b) and an updated Schedule 8.21 9.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
(c) the Hearst-Argyle Transaction and the Denver Transaction, provided that (i) each of the conditions set forth in clause (b) above have been satisfied, and (ii) the Borrower shall have delivered to the Administrative Agent fully executed copies (complete with schedules and attachments thereto) of the Hearst-Argyle Acquisition Documents or the Denver Acquisition Documents, as the case may be, certified by an officer of the Borrower to be true, complete and accurate copies of such documents and (iii) each such transaction shall be consummated in accordance with the terms of the Hearst-Argyle Acquisition Documents or the Denver Acquisition Documents, as the case may be, in all material respects;
(d) other media-related acquisitions not included in clause (b) or (c) above, provided that (i) the aggregate purchase price for all such acquisitions shall not exceed $100,000,000, and (ii) each of the conditions set forth in clause (b) above have been satisfied; and
(e) the Borrower or any of its Subsidiaries may enter into LMA Agreements provided that (i) at the time the Borrower or such Subsidiary enters into an LMA Agreement, no Default or Event of Default has occurred and is then continuing or could reasonably be expected to result as a consequence of entering into such LMA Agreement, (ii) if (A) the Borrower or any of its Subsidiaries has acquired an option to acquire a Station or is otherwise obligated to purchase a Station in connection with such LMA Agreement or in a related transaction or (B) such LMA Agreement is material as determined in the reasonable judgment of the Initial Agents after consultation with the Borrower, all of the Borrower's and/or its Subsidiaries' (as the case may be) rights and interests in, to and under each such LMA Agreement shall have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance satisfactory to Administrative Agent, (iii) if such LMA Agreement contemplates a Station acquisition, such Station acquisition must satisfy the provisions of clause (b) above, (iv) if such LMA Agreement contemplates an Asset Sale or Asset Swap, such Asset Sale or Asset Swap is otherwise permitted pursuant to ss.11.5 hereof, and (v) the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit G hereto.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Mergers and Acquisitions. The Subject only to the limitations, terms and conditions set forth in Section 9.5(a) through (e), Borrower will notshall have the right to (i) merge or consolidate with or acquire any Person, (ii) acquire the stock of another Person, (iii) acquire any, all, or substantially all of the assets of another Person, (iv) assume or guarantee the Indebtedness of another Person in connection with an Acquisition, and will not permit any (v) acquire assets of its Subsidiaries toanother Person subject to a lien or capitalized lease. The transactions identified in subsections (i), become a party (ii) and (iii) above are collectively referred to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:herein as an "Acquisition."
(a) upon prior written Borrower shall give Bank notice to within five (5) days after the Administrative Agent, the closing of: (i) any Acquisition effected by merger or consolidation of one with or into another Person, (1ii) or any Acquisition in which the consideration paid is more than $500,000, (iii) any Acquisition in which Borrower acquires assets outside of the Operating Subsidiaries continental United States, (iv) any Acquisition of the stock of another Person, (v) any Acquisition pursuant to which Borrower with and into acquires real estate, (vi) any Acquisition if Borrower assumes the Borrower, or the merger or consolidation Indebtedness of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries another Person in an amount in excess of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;$100,000.
(b) after In the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to event an Asset Swap Acquisition is effected by a merger or otherwise) of stock, consolidation with or other securities of, or any assets of, any into another Person, Borrower shall be the surviving entity.
(c) In the event as a consequence of an Acquisition Borrower acquires assets which are subject to a lien in each case to the extent favor of another lender, such acquisition would involve all or substantially all of lien shall be a radio broadcasting, television broadcasting or publishing business or business unit thereof, Permitted Lien as defined herein; provided that:
(i) no Default or Event Borrower shall take all actions which are reasonable and necessary to insure that such lien in favor of Default has occurred and is continuing or would result from a secured party, other than Bank, does not extend to any asset of Borrower other than those acquired in such acquisition;
Acquisition, (ii) not less than five (5) Business Days prior that Bank has and continues to the consummation of such proposed acquisitionhave a first, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of Borrower's assets, other than those acquired in the assets so acquired Acquisition, and (excluding any Excluded Assetsiii) to the extent permitted pursuant to the Security Documentsmortgage, free security agreement or other document creating the lien in favor of all Liens the other than Permitted Liens;secured party, Borrower shall grant or cause to be granted to Bank a subordinated lien on such Assets.
(ivd) in In the event Borrower assumes the Indebtedness of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such another Person in connection with an Acquisition, such acquisition to Indebtedness shall be in the extent form of a capitalized lease or other term loan, shall not be a revolving credit facility of any nature, and no additional borrowings shall be made under any such credit facility, without Bank's prior written consent.
(e) At all times, both before and after an Acquisition, Borrower shall be in compliance with the covenants set forth in Section 9.1. No Acquisition shall be permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full hereunder which creates a default of the Obligations, pursuant to Collateral Assignments of Contracts covenants set forth in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionSection 9.1.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices or enter into any LMA Agreement, the acquisition of shares of common stock of the Borrower) except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger merger, amalgamation or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower; PROVIDED that if any of the parties to such merger, so long as in each case the surviving Subsidiary amalgamation or consolidation is a Guarantor;, the survivor of such merger, amalgamation or consolidation shall be a Guarantor or the Borrower unless in connection with the Reorganization; or
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, stock or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided PROVIDED that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to such Person is in the consummation same line of such proposed acquisition, business as the Borrower shall have delivered to the Administrative Agent and its Subsidiaries or a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any wayrelated business;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(viiv) all of the Borrower’s and/or its Subsidiaries’ not less than ten (as the case may be10) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition days prior to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(bwritten notice of such acquisition, which notice shall provide the Administrative Agent with a reasonably detailed description of such acquisition;
(v) not less than ten (10) days prior to the consummation of the proposed acquisition, the Borrower shall have delivered (if applicable) to the Administrative Agent evidence satisfactory to the Administrative Agent of the calculation of EBITDA for the Person to be acquired for the immediately preceding twelve (12) month period prior to the proposed acquisition date;
(vi) not less than ten (10) days prior to the consummation of the proposed acquisition, the Borrower shall have delivered to the -52- Administrative Agent a Compliance Certificate demonstrating PRO FORMA compliance with the financial covenants set forth in Section 10;
(vii) except as provided in Section 9.5.1(b)((ix) below, in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary (except for director qualifying shares) of the Borrower and an updated Schedule 8.21 to this Credit Agreement, the Borrower and the acquired Person shall comply with the terms and conditions of Section 8.11 if such Person qualifies as applicable, a Significant Subsidiary hereunder;
(viii) after giving effect to such acquisition, the Borrower shall be able to borrow at a minimum an additional $25,000,000 of Revolving Credit Loans; and
(ix) the sum of (i) the aggregate purchase price for all acquisitions consummated pursuant to this Section 9.5.1 PLUS (ii) the amount of Investments made by the Borrower or any of its Subsidiaries in Subsidiaries of the Borrower which are not Guarantors pursuant to Section 9.3(i) including non-wholly owned Subsidiaries and Investments in joint ventures, but excluding Investments made in connection with the Reorganization, shall not exceed $150,000,000; PROVIDED, HOWEVER, no such restrictions shall apply if (i) in the event of a stock acquisition, the acquired Person (A) becomes a Guarantor in accordance with Section 8.11 or is designated as a Guarantor by the Borrower and (B) has positive EBITDA for the immediately preceding twelve (12) month period prior to the acquisition date or (ii) in the event of an asset acquisition, (A) the assets so acquired shall have generated positive EBITDA during the twelve (12) month period immediately preceding the acquisition date or (B) if such assets did not generate EBITDA (positive or negative) during such twelve (12) month period immediately preceding the acquisition date, the Borrower projects such assets would add positive EBITDA for the Borrower for the twelve (12) month period immediately following the acquisition date.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary Borrower provided if only one such Person is a Guarantor;
, then the Guarantor shall be the survivor, and (bc) after any merger or asset or stock acquisition by the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, Borrower or any assets of, any Personof its Subsidiaries of Persons (or, in each the case to the extent such acquisition would involve all or substantially all of an asset acquisition, assets of a radio broadcasting, television broadcasting Person) in the same or publishing similar line of business or business unit thereof, provided thatas the Borrower (a "PERMITTED ACQUISITION") so long as:
(i) no Default or Event the Borrower has provided the Administrative Agent with prior written notice of Default has occurred and is continuing or would result from such acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of each of the business Borrower or the applicable Subsidiary and of the Person to be acquired has approved such merger, consolidation or acquisition;
(viiii) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person any Indebtedness incurred or assumed in connection with such acquisition to the extent permitted Permitted Acquisition (including, without limitation, any assumed Indebtedness, earnout arrangements, seller Indebtedness and non-compete payments) shall have been assigned permitted to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, be incurred or assumed pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative AgentSection 9.1;
(viiiv) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
not less than five (viii5) the Borrower shall have delivered days prior to the Administrative Agent evidence reasonably satisfactory to consummation of the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquiredproposed acquisition, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower Person (or assets, as the case may be) to be acquired has a positive EBITDA for the most recent twelve calendar months and had a positive EBITDA for the most recent fiscal year end, as demonstrated by audited financial statements (or, to the extent such Subsidiary Person so acquired has completed no audited historical financial results, the management prepared financial results of such acquisition in accordance Person so acquired) but with the terms Borrower being permitted to adjust such historical calculations to include in such calculations of EBTIDA reasonable cost savings, expenses and other income statement or operating statement adjustments which are attributable to the contracts change in ownership and/or management resulting from such Permitted Acquisition and agreements entered into by are effected on the closing of such Person in connection with such acquisitionPermitted Acquisition, and (B) certified copies of all such documents shall have been delivered as may be reasonably acceptable to the Administrative Agent, which adjustments shall be deemed to have been realized on the consummation of such Permitted Acquisition), with such results to be in form and substance reasonably acceptable to the Administrative Agent, PROVIDED, HOWEVER, in each case, in the event that either no historical financial results are available with respect to the Person to be acquired, the Person to be acquired is not a separate legal entity, the Borrower or Subsidiary effecting the acquisition is acquiring only assets of another Person or, in the Administrative Agent's reasonable discretion it determines the historical financial results do not adequately reflect the financial results of the Person or assets to be acquired, such calculations shall be made with reference to reasonable estimates of such past performance made by the Borrower based on existing data and other available information, such estimates to be reasonably acceptable in all respects to the Administrative Agent; (B) a Compliance Certificate prepared on a pro forma basis demonstrating compliance with the financial covenants set forth in Section 10 hereof both before and after giving effect to such Permitted Acquisition (with the Borrower being permitted to include in such pro forma statements reasonable cost savings, expenses and other income statement or operating statement adjustments which are attributable to the change in ownership and/or management resulting from such Permitted Acquisition and are effected on the closing of such Permitted Acquisition, as may be reasonably acceptable to the Administrative Agent, which adjustments shall be deemed to have been realized on the consummation of such Permitted Acquisition); and (C) a certificate from the chief financial officer of the Borrower to the effect that (1) the Borrower on a consolidating basis, and the Borrower and its Subsidiaries, on a consolidated basis, will be solvent both before and after consummating the Permitted Acquisition and (2) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition;
(xv) all FCC Licenses in the event of a stock acquisition, the Person so acquired shall become a wholly owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in Section 8.14;
(vi) the business to be acquired would not subject the Administrative Agent or any Lender to regulatory or third party approvals in connection with the exercise of any of its rights and remedies under this Credit Agreement or any other Loan Document;
(vii) no contingent obligations or liabilities will be incurred or assumed in connection with such acquisition shall which could reasonably be transferred immediately upon consummation of such acquisition expected to have a License SubsidiaryMaterial Adverse Effect;
(xiviii) substantially contemporaneously with the aggregate amount of the purchase price for any single acquisition or series of related acquisitions which is payable in anything other than the Capital Stock of the Parent (and such acquisition, the Borrower Capital Stock shall have delivered no redemption or repurchase rights prior to a date which is one (1) year after the Administrative Agent an updated Schedule 8.3(bRevolving Credit Loan Maturity Date and shall not have the ability to convert into any form of Indebtedness) shall not exceed $35,000,000; and
(ix) the aggregate amount of the purchase price for all acquisitions over any twelve consecutive calendar month period which is payable in anything other than the Capital Stock of the Parent (and an updated Schedule 8.21 such Capital Stock shall have no redemption or repurchase rights prior to this a date which is one (1) year after the Revolving Credit Agreement, as applicable, after giving effect Loan Maturity Date and shall not have the ability to such acquisitionconvert into any form of Indebtedness) shall not exceed $70,000,000.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will notIn the event: (i) of a Change of Control of Emulex, other than a Financial Change of Control (as defined below); or (ii) that Emulex or any Emulex Affiliate enters into a Related Product Acquisition where the third party business that is acquired or merged with (or whose assets or business is acquired) in such Related Product Acquisition had total gross revenue during the last [**] full calendar quarters immediately preceding the closing date of such Related Product Acquisition (the “Acquired Revenue”) that is more than [**] of the applicable Emulex Revenue (either of the foregoing (i) or (ii), a “Transaction”), then the licenses and will not permit any of its Subsidiaries to, become a party other rights granted to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Emulex under this Agreement, except:
: (a) upon will automatically become limited, as of the closing date of the Transaction, to the then-existing Licensed Products that have been made generally commercially available by Emulex prior to the date of entry into such Transaction and the Licensed Products [**] (the “Existing and Roadmap Products”); and (b) will not in any event cover any products or services of (x) any other party to the Transaction; or (y) Emulex other than the Existing and Roadmap Products. Emulex will promptly notify Broadcom following completion of a Related Product Acquisition by Emulex or any Emulex Affiliate, with such written notice including a Report as specified in Section 4.5. As used in this Section 7.4, “Emulex Revenue” means, with respect to the Administrative Agenta Related Product Acquisition, the merger total gross revenues of Emulex in the last [**] full quarters (based on Fiscal Years) immediately preceding such Related Product Acquisition. As used in this Section 7.4, a “Financial Change of Control” means a Change of Control of Emulex in which the entity that obtains Control of Emulex is a private equity firm, financial investment entity or consolidation other similar financial institution or financial creditor (such an entity, meeting all of one the criteria set forth in this sentence, a “Financial Acquiror”) that is not: (1) itself in the business of designing, manufacturing, selling or more of the Operating Subsidiaries of the Borrower with and into the Borrowerdistributing any goods, or the merger or consolidation of two (2) an Affiliate of an entity that is in the business of designing, manufacturing, selling or more wholly-owned distributing any goods, other than a separate entity that is Controlled by such Financial Acquiror that is operated entirely separately from Emulex after such transaction. For the avoidance of doubt, after any Financial Change of Control, any subsequent merger or other business combination of Emulex with, or acquisition by, any other entity that is not a Financial Acquiror (A) Operating Subsidiaries or (B) License Subsidiaries including any Affiliate of the Borrower, so long applicable Financial Acquiror that does not itself qualify as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities ofFinancial Acquiror), or any assets of, any Person, other subsequent transaction that would have constituted a Change of Control in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation absence of such proposed acquisitionFinancial Change of Control other than another Financial Change of Control, the Borrower shall have delivered to the Administrative Agent itself constitute a duly executed certificate substantially Change of Control. As an example, if a Financial Acquiror Controls another entity that is in the form business of Exhibit F heretodesigning, manufacturing, selling or distributing goods, and upon the Administrative Agent’s requestafter a Financial Change of Control of Emulex, such financial projections as other entity subsequently acquires or merges with Emulex, then such subsequent acquisition or merger shall be necessary, in deemed a Change of Control for purposes of this Section 7.4 even if the reasonable judgment Financial Acquiror maintains Control of the Administrative Agentacquiring or surviving entity. As another example, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on if a Pro Forma Basis and Financial Acquiror Controls another entity that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
also qualifies as a Financial Acquiror (iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition“Financial Sub”), and (B) certified copies after a Financial Change of all Control of Emulex, such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection Financial Sub subsequently acquires or merges with Emulex, then such subsequent acquisition or merger shall be transferred immediately upon consummation deemed a Financial Change of such acquisition to Control (rather than a License Subsidiary;
(xiChange of Control) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to for purposes of this Credit Agreement, as applicable, after giving effect to such acquisition.Section 7.4
Appears in 1 contract
Samples: Patent License and Release Agreement (Emulex Corp /De/)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition other than (a) upon prior written notice to the Administrative Agent, acquisition of assets in the ordinary course of business consistent with past practices; (b) the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
; (bc) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap of stock or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of the assets of a radio broadcasting, television broadcasting or publishing business or business unit thereofdivision as a going concern or by means of a merger or consolidation) of a 100% interest in any other Person (a "Permitted Acquisition"), provided that:
that (i) such other Person is in a similar or complementary business to the Borrower, (ii) no Default or Event of Default with respect to ss.12.1(c)(ii) has occurred and is continuing or would exist after giving effect thereto, (iii) if the Borrower or the acquiring Subsidiary merges with such other Person, the Borrower or such Subsidiary, as the case may be, is the surviving party, and (iv) the Borrower has delivered to the Agent Compliance Certificates demonstrating, both immediately prior to and immediately after such acquisition, compliance on a Pro Forma Basis with the covenants set forth in ss.9 of this Credit Agreement; and (d) the acquisition of a portfolio of Vehicle Loans by the Borrower or its Subsidiaries, provided that (i) the Borrower or such Subsidiary shall have delivered to the Agent a closing spreadsheet with respect to such acquisition at least three (3) days following the effective date of such acquisition, (ii) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
exist after giving effect thereto, and (iiiii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have has delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F heretoCompliance Certificates demonstrating, both immediately prior to and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, immediately after giving effect to such acquisition, all covenants contained herein will be satisfied compliance on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions covenants set forth in §9.15;
(v) the board ss.9 of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Auto Finance Co Inc)
Mergers and Acquisitions. The Borrower will not, and Borrowers will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except as otherwise provided in this Section 9.5.
1. Any of the Borrowers may acquire the assets or stock of any other Borrower, or enter may merge or consolidate with or into any LMA Agreementother Borrower, exceptPROVIDED that, in the case of a merger or consolidation of the Parent and a Borrower, the Parent shall be the surviving entity. Any of the Borrowers may acquire all or substantially all of the assets or Capital Stock of any Person, PROVIDED that:
(a) upon prior written notice the Borrowers shall have delivered to each of the Lenders a Compliance Certificate certifying they are in current compliance with and, giving effect to the Administrative Agentproposed acquisition (including any borrowings made or to be made in connection therewith), the merger or consolidation of one (1) or more will continue to be in compliance with all of the Operating Subsidiaries covenants in Section 10 hereof on a PRO FORMA historical combined basis as if the transaction occurred on the first day of the Borrower with and into the Borrower, or the merger or consolidation period of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantormeasurement;
(b) after at the Revert Date upon prior written notice to the Administrative Agenttime of such acquisition, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or would result from such acquisitionan Event of Default hereunder;
(iic) not less than five the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto;
(5d) Business Days prior the business to be acquired operates predominantly in the consummation continental United States;
(e) all of the assets to be acquired shall be owned by an existing or newly created Subsidiary of the Parent which Subsidiary shall be a Borrower, one hundred percent (100%) of the assets (excluding motor vehicle equipment) and Capital Stock of which have been or, simultaneously with such proposed acquisition, the Borrower shall have delivered will be pledged to the Administrative Agent a duly executed certificate substantially in on behalf of the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessaryLenders or, in the reasonable judgment case of a stock or other equity interest acquisition, the Administrative Agentacquired company, to demonstrate that, after giving effect to simultaneously with such acquisition, all covenants contained herein will shall become a Borrower or shall be satisfied on merged with and into a Pro Forma Basis wholly owned Subsidiary that is a Borrower and that such newly acquired or created Subsidiary shall otherwise comply with the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any wayprovisions of Section 8.14 hereof;
(iiif) all actions not later than seven (7) days prior to the proposed acquisition date, a copy of the purchase agreement and financial projections, together with audited (if available, or otherwise unaudited) financial statements for any Subsidiary to be acquired or created for the preceding two (2) fiscal years or such shorter period of time as such Subsidiary has been in existence shall have been taken to the reasonable satisfaction of the Administrative Agent to provide furnished to the Administrative Agent, for only in cases of Material Acquisitions or upon request by the benefit Administrative Agent;
(g) not later than seven (7) days prior to the proposed acquisition date, (i) a summary of the Lenders Borrowers' results of their standard due diligence review, and (ii) in the case of a landfill acquisition, including a review by a Consulting Engineer and a copy of the Consulting Engineer's report shall have been furnished to the Administrative Agent, a first priority perfected security interest only in all cases of Material Acquisitions or upon request by the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted LiensAdministrative Agent;
(ivh) cash consideration to be paid by such Borrower in connection with any such acquisition or series of related acquisitions (including the event aggregate amount of a stock acquisitionall Consolidated Total Funded Debt assumed or incurred), shall not exceed $12,500,000 without the acquired Person shall become a wholly-owned Subsidiary prior written consent of the Borrower Administrative Agent and shall comply with the terms and conditions set forth in §9.15Required Lenders;
(vi) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business Person to be acquired has approved such acquisition;; and
(vij) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with if such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligationsis made by a merger, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the a Borrower shall have delivered to be the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionsurviving entity.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Iesi Tx Corp)
Mergers and Acquisitions. The Borrower will notNone of the Borrowers or Foreign Subsidiaries shall, and will not permit any of its Subsidiaries todirectly or indirectly, become a party to any merger, amalgamation amalgamation, or consolidation, or agree to or effect any asset acquisition or stock acquisition, acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices or enter into any LMA Agreement, except:
(athe acquisition of Excluded Subsidiaries permitted under Section 7.02(j)) upon prior written notice to the Administrative Agent, except the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, asset or stock acquisitions between Borrowers and except as otherwise provided in each case to this Section 7.04(a). The Borrowers and the extent such acquisition would involve Foreign Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock or other equity interests of any other Person (a radio broadcasting, television broadcasting or publishing business or business unit thereof, “Permitted Acquisition”) provided that:
(i) the Borrowers are in current compliance with and, giving effect to the proposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in compliance with all of its covenants and agreements contained in this Agreement, including the financial covenants in Section 7.11 hereof on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement;
(ii) at the time of such acquisition, no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F heretocontinuing, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents acquisition will not be impaired in any wayotherwise create a Default or an Event of Default hereunder;
(iii) the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto (e.g., non-hazardous solid waste collection, transfer, hauling, recycling, or disposal);
(iv) the business to be acquired operates predominantly in the United States or Canada;
(A) in the case of an asset acquisition, all actions have been taken of the assets acquired shall be acquired by an existing Borrower or a newly-created wholly-owned Subsidiary of the Parent, which, if it is a U.S. Subsidiary, shall become a Borrower hereunder in accordance with Section 6.19, and 100% of its Equity Interests and its assets shall be pledged simultaneously with such acquisition to the reasonable satisfaction of the Administrative Agent to provide for the benefit of the Lenders and the Agents, (B) in the case of an acquisition of Equity Interests of a U.S. company, the acquired company, simultaneously with such acquisition, shall become a Borrower in accordance with Section 6.19 and 100% of its Equity Interests and its assets shall be pledged simultaneously with such acquisition to the Administrative AgentAgent for the benefit of the Lenders and the Administrative Agent or the acquired company shall be merged or amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such newly-acquired or newly-created Subsidiary shall otherwise comply with the provisions of Section 6.19 hereof; or (C) in the case of acquisition of Equity Interests of a foreign Person that, in connection therewith, becomes a Foreign Subsidiary, the acquiring Borrower shall pledge 65% of the Equity Interests of such Foreign Subsidiary simultaneously with such acquisition to the Administrative Agent for the benefit of the Lenders and the Administrative Agent.
(vi) if the total consideration in connection with any such acquisition, including the aggregate amount of all liabilities assumed, but excluding the payment of all fees and expenses relating to such purchase, exceeds the Threshold Amount (a first priority perfected security interest in all “Material Acquisition”), then not later than seven (7) days prior to the proposed acquisition date, the Borrowers shall furnish the Administrative Agent with (i) a copy of the assets so acquired purchase agreement, (excluding any Excluded Assetsii) pursuant to its audited (if available, or otherwise unaudited) financial statements for the Security Documentspreceding two (2) fiscal years or such shorter period of time as such entity or division has been in existence, free (iii) a summary of all Liens other than Permitted Liens;
the Borrowers’ results of their standard due diligence review, (iv) in the event case of a stock acquisitionlandfill acquisition or if the target company owns a landfill, the acquired Person shall become a wholly-owned Subsidiary review by a Consulting Engineer and a copy of the Borrower and shall comply with the terms and conditions set forth in §9.15;
Consulting Engineer’s report, (v) a Compliance Certificate demonstrating compliance with Section 7.11 hereof on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement, (vi) written evidence that the board of directors and (if required by applicable lawApplicable Law) the shareholders, or the equivalent thereof, of the business to be acquired has have approved such acquisition;
, and (vivii) all of the Borrower’s and/or its Subsidiaries’ (such other information as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance may reasonably request, which in full of the Obligations, pursuant to Collateral Assignments of Contracts each case shall be in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vii) in the case board of any acquisition involving domestic radio directors and (if required by Applicable Law) the shareholders, or television assetsthe equivalent thereof, of the FCC business to be acquired shall have issued orders approving or consenting to approved such acquisition;
(viii) if such acquisition is made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of the Parent (which may be the acquired company) which shall become a Borrower in connection with such merger, shall be the surviving entity, except with respect to an Excluded Subsidiary or Non-Borrower Subsidiary; provided, that if the surviving entity is a Foreign Subsidiary, the applicable Borrower shall have delivered pledge 65% of the Equity Interests of such Foreign Subsidiary simultaneously with such merger or amalgamation to the Administrative Agent evidence reasonably satisfactory to for the benefit of the Lenders and the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;Agent; and
(ix) cash consideration to be paid by any Borrower in connection with any acquisition or series of related acquisitions (including cash deferred payments, contingent or otherwise, and the Borrower aggregate amount of all Indebtedness assumed or, in the case of an acquisition of Equity Interests, including all Indebtedness of the target company) shall have delivered to not exceed $20,000,000 without the consent of the Administrative Agent (A) evidence satisfactory to and the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionRequired Lenders.
Appears in 1 contract
Samples: Revolving Credit Agreement (Casella Waste Systems Inc)
Mergers and Acquisitions. The Borrower will notIn the event: (i) of a Change of Control of Emulex, other than a Financial Change of Control (as defined below); or (ii) that Emulex or any Emulex Affiliate enters into a Related Product Acquisition where the third party business that is acquired or merged with (or whose assets or business is acquired) in such Related Product Acquisition had total gross revenue during the last [**] full calendar quarters immediately preceding the closing date of such Related Product Acquisition (the “Acquired Revenue”) that is more than [**] of the applicable Emulex Revenue (either of the foregoing (i) or (ii), a “Transaction”), then the licenses and will not permit any of its Subsidiaries to, become a party other rights granted to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Emulex under this Agreement, except:
: (a) upon will automatically become limited, as of the closing date of the Transaction, to the then-existing Licensed Products that have been made generally commercially available by Emulex prior to the date of entry into such Transaction and the Licensed Products [**] (the “Existing and Roadmap Products”); and (b) will not in any event cover any products or services of (x) any other party to the Transaction; or (y) Emulex other than the Existing and Roadmap Products. Emulex will promptly notify Broadcom following completion of a Related Product Acquisition by Emulex or any Emulex Affiliate, with such written notice including a Report as specified in Section 4.5. As used in this Section 7.4, “Emulex Revenue” means, with respect to the Administrative Agenta Related Product Acquisition, the merger total gross revenues of Emulex in the last [**] full quarters (based on Fiscal Years) immediately preceding such Related Product Acquisition. As used in this Section 7.4, a “Financial Change of Control” means a Change of Control of Emulex in which the entity that obtains Control of Emulex is a private equity firm, financial investment entity or consolidation other similar financial institution or financial creditor (such an entity, meeting all of one the criteria set forth in this sentence, a “Financial Acquiror”) that is not: (1) itself in the business of designing, manufacturing, selling or more of the Operating Subsidiaries of the Borrower with and into the Borrowerdistributing any goods, or the merger or consolidation of two (2) an Affiliate of an entity that is in the business of designing, manufacturing, selling or more wholly-owned distributing any goods, other than a separate entity that is Controlled by such Financial Acquiror that is operated entirely separately from Emulex after such transaction. For the avoidance of doubt, after any Financial Change of Control, any subsequent merger or other business combination of Emulex with, or acquisition by, any other entity that is not a Financial Acquiror (A) Operating Subsidiaries or (B) License Subsidiaries including any Affiliate of the Borrower, so long applicable Financial Acquiror that does not itself qualify as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities ofFinancial Acquiror), or any assets of, any Person, other subsequent transaction that would have constituted a Change of Control in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation absence of such proposed acquisitionFinancial Change of Control other than another Financial Change of Control, the Borrower shall have delivered to the Administrative Agent itself constitute a duly executed certificate substantially Change of Control. As an example, if a Financial Acquiror Controls another entity that is in the form business of Exhibit F heretodesigning, manufacturing, selling or distributing goods, and upon after a Financial Change of Control of Emulex, Confidential portions of this Exhibit marked as [**] have been omitted pursuant to a request for confidentiality and filed separately with the Administrative Agent’s requestSecurities and Exchange Commission. such other entity subsequently acquires or merges with Emulex, then such subsequent acquisition or merger shall be deemed a Change of Control for purposes of this Section 7.4 even if the Financial Acquiror maintains Control of the acquiring or surviving entity. As another example, if a Financial Acquiror Controls another entity that also qualifies as a Financial Acquiror (a “Financial Sub”), and after a Financial Change of Control of Emulex, such financial projections as Financial Sub subsequently acquires or merges with Emulex, then such subsequent acquisition or merger shall be necessary, in the reasonable judgment deemed a Financial Change of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on Control (rather than a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iiiChange of Control) all actions have been taken to the reasonable satisfaction for purposes of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.Section 7.4
Appears in 1 contract
Samples: Patent License and Release Agreement
Mergers and Acquisitions. The Borrower Borrowers will not, and will not permit any of its their Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices, Investments permitted by Section 10.3 hereof and Capital Expenditures so long as such Capital Expenditures are to acquire Capital Assets which do not represent all or enter into any LMA Agreement, except:
substantially all of the assets of another Person or a division of such Person) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the any Borrower with and into the such Borrower, or (b) the merger or consolidation of two or more Subsidiaries of any Borrower or (c) any other asset or stock acquisitions of Persons in the same or a related line of business as any Borrower or its Subsidiaries (each, a "Permitted Acquisition") where (i) the Company has provided the Agent with two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon Business Days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and the documents, agreements and instruments to be entered into in connection with such Permitted Acquisition; (ii) without the Administrative prior consent of the Agent, the acquisition (whether pursuant business to an Asset Swap be acquired would not subject the Banks or otherwise) the Agent to regulatory or third party approvals in connection with the exercise of stock, or other securities of, their rights and remedies under this Credit Agreement or any other Loan Document; (iii) the business and assets of, so acquired shall be acquired by the applicable Borrower or the applicable Subsidiary free and clear of all liens and encumbrances and all Indebtedness (including any Person, in each case assumed or incurred contingent obligations or liabilities) other than as permitted by Section 10.1 or Section 10.2 hereof; (iv) the Company shall have demonstrated to the extent reasonable satisfaction of the Agent, based on a pro forma Compliance Certificate, compliance with Section 11 hereof on a pro forma basis immediately prior to and after giving effect to such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
Permitted Acquisition; (iv) no Default or Event of Default has occurred and is continuing or would exist as a result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisitionPermitted Acquisition; (vi) the applicable Borrower or Subsidiary effecting such Permitted Acquisition must be the surviving entity (or, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event case of a stock Subsidiary effecting the acquisition, the acquired Person shall become surviving entity becomes a wholly-owned Subsidiary of a Borrower); (vii) the Borrower and aggregate purchase price paid in cash for all Permitted Acquisitions in any fiscal year shall comply with not exceed twenty five percent (25%) of the terms and conditions set forth in §9.15;
prior fiscal quarter's Consolidated Tangible Net Worth; (vviii) the board of directors and the shareholders (if required by applicable law) the shareholders, or the equivalent thereofequivalent, of each Person has approved the business Permitted Acquisition; (ix) to the extent required by Section 9.14, the Company or such other applicable Person involved in the acquisition has taken or caused to be taken all necessary actions to the extent reasonably practicable to grant to the Agent a first priority perfected lien (except for Permitted Liens having priority under applicable law) in accounts receivable and inventory and capital stock or other equity interests to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, ; and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired the acquisition is not prohibited by the Subordinated Indenture. In addition, in the event any new Subsidiary is formed as a result of or in connection with any acquisition, to the extent such acquisition Subsidiary has the legal power to enter into a Guarantee and Security Agreement, the Loan Documents shall be transferred immediately upon consummation amended and/or supplemented as necessary to make the terms and conditions of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect Loan Documents applicable to such acquisitionSubsidiary as a Guarantor hereunder.
Appears in 1 contract
Samples: Revolving Credit Agreement (Flextronics International LTD)
Mergers and Acquisitions. The Neither the Guarantor nor the Borrower will notwill, and neither will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) or enter into open any LMA Agreement, except:
new Stores except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, (c) the merger of the Borrower with the Guarantor, (d) the Guarantor and/or the Borrower shall be permitted to enter into an agreement to effect a merger so long as in each (i) the Guarantor and/or the Borrower, as the case may be, provide the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior Banks with written notice promptly after entering into such merger agreement, which notice shall set forth the terms of such agreement in reasonable detail; (ii) such merger agreement provides for the indefeasible repayment in full, in cash, of all of the Obligations and a termination of the Total Commitment immediately upon the consummation of the contemplated merger; and (iii) the Guarantor or the Borrower, as the case may be, shall incur no liability or expense under the terms of the merger agreement, other than reasonable expenses for professional fees related thereto or (e) subject to the Administrative Agentother requirements of this Credit Agreement, the acquisition (whether pursuant to an Asset Swap or otherwise) opening of stock, or other securities of, or any assets of, any Person, in each case to new Stores by the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
Borrower PROVIDED that (i) the Borrower acquires or opens no Default or Event of Default has occurred more than six new Stores per fiscal year and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event case of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of is immediately merged with and into the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) Borrower being the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionsurviving entity.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Filenes Basement Corp)
Mergers and Acquisitions. The Borrower Borrowers will not, and will not permit any of its their Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, acquisition except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing continuing, or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, exist after giving effect to such acquisitionthereto:
(a) the merger of one or more of the Subsidiaries of the Company with and into the Company, all covenants contained herein will be satisfied on any other Domestic Borrower hereunder or a Pro Forma Basis Guarantor hereunder, and that provided the Borrower’s ability to satisfy its payment obligations hereunder and under Company, the other Loan Documents will not Domestic Borrower or the Guarantor, as the case may be, has taken or caused to be impaired in any way;
(iii) taken all actions have been taken action necessary to grant to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the Company's or such other Domestic Borrower's or Guarantor's assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liensafter such merger;
(b) the acquisition of the assets or stock of Persons in the same or a similar line of business as the Company and its Subsidiaries (including home electrical and other consumer appliances, industrial electrical products and other similar products) (each, a "Permitted Acquisition") where (i) the Company has provided the Agent with thirty (30) days prior written notice of such, Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and copies of all acquisition documents in connection therewith; (ii) the business to be acquired would not subject the Agent or the Banks to regulatory or third party approvals in connection with the exercise of their rights and remedies under this Credit Agreement or any other Loan Document; (iii) no contingent liabilities or liabilities will be incurred or assumed in connection with such Permitted Acquisition which could be expected to have a Material Adverse Effect, and any Indebtedness incurred or assumed in connection with such Permitted Acquisition (1) shall have been permitted to be incurred or assumed pursuant to ss.9.1 hereof; (2) shall not bear cash interest at a rate in excess of 600 basis points over the applicable treasury rate per annum and shall not bear interest at a rate in excess of 900 basis points over the applicable treasury rate per annum; (3) shall not have a maturity prior to the Term Loan B Maturity Date; (4) shall not contain any financial covenants; (5) shall be unsecured; (6) shall contain an amortization schedule acceptable to the Agent and (7) shall contain subordination provisions acceptable to the Agent and the Banks; provided that any such Indebtedness permitted by ss.9.1(g)(ii) shall not have to comply with clauses (2)-(7) hereof; (iv) in the event of a stock acquisition, Company has provided the acquired Person shall become a wholly-owned Subsidiary of Agent with such other information as was reasonably requested by the Borrower and shall comply with the terms and conditions set forth in §9.15;
Agent; (v) after the consummation of the Permitted Acquisition, the Company shall own a majority of the capital stock of the Person to be acquired or shall otherwise control such Person (including, without limitation, controlling the ability of such Person to make loans, advances and Distributions in cash to the Company); (vi) the Company shall take, or shall cause to be taken, all necessary action to grant to the Agent a first priority perfected lien in all assets and stock acquired in connection with such Permitted Acquisition, with such exceptions as the Agent may approve; provided, however, the Company or any Guarantor, as the case may be, shall only be required to pledge 66% of the capital stock of any Foreign Subsidiary or any other Person not incorporated or otherwise organized in the United States of America (a "Foreign Entity"), and such Foreign Entity shall not be required to xxxxx x xxxx on its assets to secure the Obligations of the Company or any Guarantor; (vii) the Company has demonstrated to the reasonable satisfaction of the Agent, based on a pro forma Compliance Certificate, compliance with ss.10 immediately prior to and on a Pro Forma Basis immediately after giving effect to such Permitted Acquisition and the Leverage Ratio (calculated on a Pro Forma Basis) after giving effect to such Permitted Acquisition shall not exceed 5.50:1.00; (viii) the maximum purchase price for any single Permitted Acquisition or series of Permitted Acquisitions relating to the same business organization or group of related companies does not exceed the sum of $40,000,000, plus the aggregate cash equity investment made by the Additional Investors in the Company for the purpose of consummating such acquisition, plus the aggregate amount of secured Indebtedness assumed in connection with such Permitted Acquisition; (ix) board of directors and the shareholders (if required by applicable law) the shareholders), or the equivalent thereofequivalent, of each of the business Company and the Person to be acquired has approved such acquisition;
merger, consolidation or acquisition and such Permitted Acquisition is otherwise considered "friendly"; (vix) all of to the Borrower’s and/or its Subsidiaries’ (as extent the case may be) rights and interests in, to and under each contract and agreement entered into by such Person Company or any Subsidiary is acquiring any Real Estate in connection with such acquisition Permitted Acquisition, the Company shall have delivered to the extent permitted have been assigned Agent all appraisals and environmental site assessments which the Agent shall reasonably require, with all such appraisals and site assessments to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts be in form and substance reasonably satisfactory to Administrative the Agent;
; and (vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viiixi) the Borrower shall have Company has delivered to the Administrative Agent evidence reasonably satisfactory a certificate of the chief financial officer of the Company to the Administrative Agent effect that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix1) the Borrower shall have delivered to Company will be solvent upon the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms consummation of the contracts Permitted Acquisition; (2) the pro forma Compliance Certificate fairly presents the financial condition of the Company and agreements entered into by such Person in connection with such acquisition, its Subsidiaries as of the date thereof and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such Permitted Acquisition; and (3) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition; and
(c) The Merger as contemplated by the Merger Documents. In the event any new Domestic Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Domestic Subsidiary shall, immediately upon its creation or acquisition, execute and deliver to the Agent for the benefit of the Agent and the Banks, an Instrument of Adherence in substantially the form of Exhibit E hereto (an "Instrument of Adherence") and the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Domestic Subsidiary. Such Domestic Subsidiary shall become a Guarantor hereunder and shall become party to the Guaranty and the Security Agreement and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Domestic Subsidiary's assets. The Company and its Subsidiaries shall, immediately upon the creation or acquisition of such Domestic Subsidiary, pledge all of such Domestic Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks. In the event any new Foreign Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Foreign Subsidiary shall, immediately upon its creation or acquisition, and to the extent legally possible in its jurisdiction of organization and to the extent that to do so would not result in the recognition of a deemed dividend from such Foreign Subsidiary, execute and deliver to the Agent for the benefit of the Agent and the Banks such guarantees and security documents as the Agent deems necessary to make the terms and conditions of the Loan Documents applicable to such Foreign Subsidiary. To the extent legally permissible, and to the extent that to do so would not result in the recognition of a deemed dividend from such Foreign Subsidiary, such Foreign Subsidiary shall guarantee the Obligations of the Subsidiary Borrowers hereunder and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Foreign Subsidiary's assets to secure its guarantee obligations. In addition, the Company and its Subsidiaries shall (unless otherwise previously agreed to in writing by the Agent), immediately upon the creation or acquisition of such Foreign Subsidiary, pledge 66% of such Foreign Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Holmes Products Corp)
Mergers and Acquisitions. The None of the Borrowers or the Non-Borrower will notSubsidiaries shall, and will not permit any of its Subsidiaries todirectly or indirectly, become a party to any merger, amalgamation amalgamation, or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of the stock of another Person or all or substantially all the assets or a radio broadcasting, television broadcasting or publishing business or business unit thereofof another Person (other than the acquisition of assets in the ordinary course of business consistent with past practices or the acquisition of Excluded Subsidiaries to the extent permitted under Section 7.02(i)) except the merger, amalgamation or consolidation of, or asset or stock acquisitions between Borrowers and except as otherwise provided thatbelow in this Section 7.04(a). The Borrowers and the Non-Borrower Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or a business unit of another Person or one hundred percent (100%) of the stock or other Equity Interests of any other Person, including by merger, amalgamation or consolidation, (any transaction satisfying the requirements of this Section 7.04(a), a “Permitted Acquisition”) so long as:
(i) for any acquisition or series of related acquisitions in which the cash consideration (including cash deferred payments, contingent or otherwise, and the aggregate amount of all Indebtedness assumed or, in the case of an acquisition of Equity Interests, including all Indebtedness of the target company that will not be repaid substantially contemporaneously with such acquisition) to be paid by any Borrower in connection with such acquisition:
(A) is less than or equal to $25,000,000, the Consolidated Net Leverage Ratio, on a pro forma historical combined basis (including pro forma for any borrowings made or to be made or Indebtedness repaid or to be repaid in connection therewith) as if the transaction occurred on the first day of the four quarter period of measurement, shall be no greater than the then applicable Consolidated Net Leverage Ratio required under Section 7.11(b) (giving effect to any Elevated Leverage Ratio Period that is then in effect or will be triggered by such acquisition) less 0.25x;
(B) is greater than $25,000,000, the Consolidated Net Leverage Ratio, on a pro forma historical combined basis (including pro forma for any borrowings made or to be made or Indebtedness repaid or to be repaid in connection therewith) as if the transaction occurred on the first day of the four quarter period of measurement, shall be no greater than the then applicable Consolidated Net Leverage Ratio required under Section 7.11(b) (giving effect to any Elevated Leverage Ratio Period then in effect or will be triggered by such acquisition) less 0.50x;
(ii) at the time of such acquisition, no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F heretocontinuing, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents acquisition will not be impaired in otherwise create a Default or an Event of Default hereunder (including by way of cross-default to any wayother Indebtedness that would constitute an Event of Default hereunder);
(iii) the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto (e.g., solid waste collection, transfer, hauling, recycling, disposal or organics);
(iv) the business to be acquired operates predominantly in the United States or Canada;
(A) in the case of an asset acquisition, all actions have been taken of the assets acquired shall be acquired by an existing Borrower or a newly-created wholly-owned Subsidiary of the Parent, which, if it is a Domestic Subsidiary, shall become a Borrower hereunder in accordance with and in the time periods prescribed by Section 6.20, and 100% of the Equity Interests issued by such Domestic Subsidiary and its assets (subject to the reasonable satisfaction provisions of the Administrative Agent Section 10.15 with respect to provide Real Property and Motor Vehicles) and shall be pledged to the Administrative Agent, for the benefit of the Lenders Secured Parties, in accordance with Borrower in accordance with and in the time periods prescribed by Sections 6.20 and Section 10.15, (B) in the case of an acquisition of Equity Interests of a U.S. company, the acquired company, shall become a Borrower in accordance with and in the time periods prescribed by Section 6.20 and 100% of its Equity Interests and its assets (to the extent it is Collateral) shall be pledged to the Administrative Agent, a first priority perfected security interest in all for the benefit of the assets so Secured Parties, or the acquired company shall be merged or amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such newly-acquired or newly-created Subsidiary shall otherwise comply with the provisions of Section 6.20; or (excluding any Excluded AssetsC) pursuant in the case of acquisition of Equity Interests of a foreign Person that, in connection therewith, becomes a Foreign Subsidiary, the acquiring Borrower shall pledge the capital stock or other Equity Interests of such Foreign Subsidiary to the Security DocumentsAdministrative Agent, free for the benefit of the Secured Parties (provided that not more than 65% of the total voting power of all Liens outstanding capital stock or other than Permitted LiensEquity Interest of any such first-tier Foreign Subsidiary shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to be pledged) in accordance with and in the time periods prescribed by Section 6.20;
(vi) if the total consideration in connection with any such acquisition, including the aggregate amount of all liabilities assumed, but excluding the payment of all fees and expenses relating to such purchase, exceeds the Threshold Amount, then not later than seven (7) days prior to the proposed acquisition date (or such later date as the Administrative Agent may agree), the Borrowers shall furnish the Administrative Agent with (i) a copy of the purchase agreement, (ii) its audited (if available, or otherwise unaudited) financial statements for the preceding two (2) fiscal years or such shorter period of time as such entity or division has been in existence, (iii) a summary of the Borrowers’ results of their standard due diligence review, (iv) in the event case of a stock acquisitionlandfill acquisition or if the target company owns a landfill, the acquired Person shall become a wholly-owned Subsidiary review by a Consulting Engineer and a copy of the Borrower and shall comply with the terms and conditions set forth in §9.15;
Consulting Engineer’s report, (v) a Compliance Certificate demonstrating compliance with Section 7.11 on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement, (vi) written evidence that the board of directors and (if required by applicable lawApplicable Law) the shareholders, or the equivalent thereof, of the business to be acquired has have approved such acquisition;
, and (vivii) all of the Borrower’s and/or its Subsidiaries’ (such other information as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance may reasonably request, which in full of the Obligations, pursuant to Collateral Assignments of Contracts each case shall be in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vii) in the case board of any acquisition involving domestic radio directors and (if required by Applicable Law) the shareholders, or television assetsthe equivalent thereof, of the FCC business to be acquired shall have issued orders approving or consenting to approved such acquisition;; and
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed if such acquisition in accordance with the terms is made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of the contracts and agreements entered into by such Person Parent (which may be the acquired company) which shall become a Borrower in connection with such acquisitionmerger, and shall be the surviving entity, except with respect to an Excluded Subsidiary or Non-Borrower Subsidiary; provided, that if the surviving entity is a Foreign Subsidiary, the applicable Borrower shall pledge the capital stock or other Equity Interests of each Foreign Subsidiary within 30 Business Days (Bor such later date as the Administrative Agent may agree) certified copies of all such documents shall have been delivered merger or amalgamation to the Administrative Agent;
, for the benefit of the Secured Parties (x) provided that not more than 65% of the total voting power of all FCC Licenses acquired in connection with such acquisition outstanding capital stock or other Equity Interest of any first-tier Foreign Subsidiary of a Borrower shall be transferred immediately upon consummation required to be so pledged and no Equity Interests of such acquisition any non-first-tier Foreign Subsidiary shall be required to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionbe so pledged).
Appears in 1 contract
Mergers and Acquisitions. The None of the Borrowers or the Non-Borrower will notSubsidiaries shall, and will not permit any of its Subsidiaries todirectly or indirectly, become a party to any merger, amalgamation amalgamation, or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of the stock of another Person or all or substantially all the assets or a radio broadcasting, television broadcasting or publishing business or business unit thereofof another Person (other than the acquisition of assets in the ordinary course of business consistent with past practices or the acquisition of Excluded Subsidiaries to the extent permitted under Section 7.02(i)) except the merger, amalgamation or consolidation of, or asset or stock acquisitions between Borrowers and except as otherwise provided that:below in this Section 7.04(a). The Borrowers and the Non-Borrower Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or a business unit of another Person or one hundred percent (100%) of the stock or other Equity Interests of any other Person, including by merger, amalgamation or consolidation, (any transaction satisfying the requirements of this Section 7.04(a), a “Permitted Acquisition”) so long as, subject to Section 1.08 with respect to any Limited Condition Acquisition (including the Specified Acquisition):
(i) subject to Section 1.08 with respect to any Limited Condition Acquisition (including the Specified Acquisition), the Borrowers are in pro forma compliance with the financial covenants contained in Section 7.11 (including, if applicable, any Elevated Leverage Ratio Period to be elected in connection with such acquisition) after giving effect to any such acquisition and any Indebtedness incurred in connection therewith (it being understood that this requirement has been satisfied with respect to the Specified Acquisition in accordance with Section 1.08(d));
(ii) at the time of such acquisition, no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or an Event of Default hereunder (including by way of cross-default to any other Indebtedness that would result from such acquisition;
constitute an Event of Default hereunder) (ii) not less than five (5) Business Days prior it being understood that this requirement has been satisfied with respect to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections Specified Acquisition as shall be necessary, in the reasonable judgment of the Administrative Agent, Specified Acquisition Signing Date with respect to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any waySection 1.08(a))(i));
(iii) the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto (e.g., solid waste collection, transfer, hauling, recycling, disposal or organics);
(iv) the business to be acquired operates predominantly in the United States or Canada;
(A) in the case of an asset acquisition, all actions have been taken of the assets acquired shall be acquired by an existing Borrower or a newly-created wholly-owned Subsidiary of the Parent, which, if it is a Domestic Subsidiary, shall become a Borrower hereunder in accordance with and in the time periods prescribed by Section 6.20, and 100% of the Equity Interests issued by such Domestic Subsidiary and its assets (subject to the reasonable satisfaction provisions of the Administrative Agent Section 10.15 with respect to provide Real Property and Motor Vehicles) and shall be pledged to the Administrative Agent, for the benefit of the Lenders Secured Parties, in accordance with Borrower in accordance with and in the time periods prescribed by Sections 6.20 and Section 10.15, (B) in the case of an acquisition of Equity Interests of a U.S. company, the acquired company, shall become a Borrower in accordance with and in the time periods prescribed by Section 6.20 and 100% of its Equity Interests and its assets (to the extent it is Collateral) shall be pledged to the Administrative Agent, a first priority perfected security interest in all for the benefit of the assets Secured Parties, or the acquired company shall be merged or amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such newly-acquired or newly-created Subsidiary shall otherwise comply with the provisions of Section 6.20; or (C) in the case of acquisition of Equity Interests of a foreign Person that, in connection therewith, becomes a Foreign Subsidiary, the acquiring Borrower shall pledge the capital stock or other Equity Interests of such Foreign Subsidiary to the Administrative Agent, for the benefit of the Secured Parties (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary shall be required to be so acquired pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to be pledged) in accordance with and in the time periods prescribed by Section 6.20;
(vi) if the total consideration in connection with any such acquisition, including the aggregate amount of all liabilities assumed, but excluding any Excluded Assetsthe payment of all fees and expenses relating to such purchase, exceeds the Threshold Amount, then not later than seven (7) days prior to the proposed acquisition date (or such later date as the Administrative Agent may agree and, in each case of sub-clauses (i) through (vii) below of this sub-clauseclause (vi) unless the Administrative Agent shall otherwise agree in writing), the Borrowers shall furnish the Administrative Agent with (i) a copy of the purchase agreement, (ii) except with respect to the Specified Acquisition, its audited (if available, or otherwise unaudited) financial statements for the preceding two (2) fiscal years or such shorter period of time as such entity or division has been in existence, and with respect to the Specified Acquisition, an unaudited pro forma consolidated model of the Parent and its consolidated subsidiaries (giving pro forma effect to the Specified Acquisition) as of and for the twelve-month period ending with the latest quarterly period of the Parent covered by the latest financials of Parent required to be delivered pursuant to Section 6.04(b) above, and a third party financial diligence memo related to the Security DocumentsSpecified Acquisition Targets dated March 30, free 2023 from an audit firm retained by the Parent, (iii) a summary of all Liens other than Permitted Liens;
the Borrowers’ or their counsel’s results of their standard due diligence review (which requirement shall be deemed satisfied with respect to the Specified Acquisition), (iv) in the event case of a stock acquisitionlandfill acquisition or if the target company owns a landfill, the acquired Person shall become a wholly-owned Subsidiary review by a Consulting Engineer and a copy of the Borrower and shall comply with the terms and conditions set forth in §9.15;
Consulting Engineer’s report, (v) except with respect to the Specified Acquisition, a Compliance Certificate demonstrating compliance with Section 7.11 (after giving effect to any Elevated Leverage Ratio Period elected in connection with such acquisition) on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement, (vi) written evidence that the board of directors and (if required by applicable lawApplicable Law) the shareholders, or the equivalent thereof, of the business to be acquired has have approved such acquisition;
, and (vivii) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection except with such acquisition respect to the extent permitted have been assigned to Specified Acquisition, such other information as the Administrative Agent as security for the irrevocable payment and performance may reasonably request, which in full of the Obligations, pursuant to Collateral Assignments of Contracts each case shall be in form and substance reasonably acceptable to the Administrative Agent; provided, that in the case of the Specified Acquisition (x) the Borrowers shall not be required to deliver the pro forma Compliance Certificate or the financial statements required by this clause (vi) (it being understood that the provisions of Section 1.08 and any applicable Specified Acquisition Loan Joinder shall control in the case of the Specified Acquisition) and (y) all deliveries pursuant to sub-clause (vii) that are subject Administrative Agent’s approval with respect to the Specified Acquisition shall be deemed in form and substance satisfactory to the Administrative Agent;
(vii) in the case board of any acquisition involving domestic radio directors and (if required by Applicable Law) the shareholders, or television assetsthe equivalent thereof, of the FCC business to be acquired shall have issued orders approving or consenting to approved such acquisition;; and
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed if such acquisition in accordance with the terms is made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of the contracts and agreements entered into by such Person Parent (which may be the acquired company) which shall become a Borrower in connection with such acquisitionmerger, and shall be the surviving entity, except with respect to an Excluded Subsidiary or Non-Borrower Subsidiary; provided, that if the surviving entity is a Foreign Subsidiary, the applicable Borrower shall pledge the capital stock or other Equity Interests of each Foreign Subsidiary within 30 Business Days (Bor such later date as the Administrative Agent may agree) certified copies of all such documents shall have been delivered merger or amalgamation to the Administrative Agent;
, for the benefit of the Secured Parties (x) provided that not more than 65% of the total voting power of all FCC Licenses acquired in connection with such acquisition outstanding capital stock or other Equity Interest of any first-tier Foreign Subsidiary of a Borrower shall be transferred immediately upon consummation required to be so pledged and no Equity Interests of such acquisition any non-first-tier Foreign Subsidiary shall be required to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionbe so pledged).
Appears in 1 contract
Mergers and Acquisitions. (a) The Borrower Company agrees that ESL will notbe paid a finder's fee of seven percent (7%) of the first $1,000,000.00, six percent (6%) of the second $1,000,000.00, five percent (5%) of the next $1,000,000.00, four percent (4%) of the next $1,000,000.00 and will not permit three percent (3%) of the excess, if any, over $4,000,000.00 of the consideration involved in any of its Subsidiaries tomerger or acquisition transaction (or equivalent) consummated by the Company, become a in which ESL introduced the other party to any merger, amalgamation or consolidation, or agree the Company during a period ending five (5) years from the Closing (an "Introduced Transaction"); and
(b) Any such finder's fee due to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:ESL will be paid in cash at the closing of the particular Introduced Transaction for which the finder's fee is due.
(a) upon prior written notice Prior to the Administrative Agent, the merger or consolidation closing of one (1) or more each Phase of the Operating Subsidiaries Private Placement, ESL shall have received an opinion addressed to Equity Services, Ltd. and each subscriber to the Private Placement, from counsel for the Company, confirming the representations and warranties of the Borrower with and into Company contained in Section 4 above, substantially in the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long form attached hereto as in each case the surviving Subsidiary is a Guarantor;Exhibit "E".
(b) after ESL shall have received a fully executed Placement Agent's Option Certificate from the Revert Date Company for the options earned upon prior written notice the closing of each Phase of the Private Placement before the closing of each Phase in which they are earned.
(c) ESL shall have received a fully executed Registration Rights Agreement with respect to the Administrative Placement Agent, 's Shares and the acquisition (whether pursuant to an Asset Swap or otherwise) ESL Option Shares from the Company for the Placement Agent's Shares and the ESL Option Shares earned upon the closing of stock, or other securities of, or any assets of, any Person, in each case to Phase of the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:Private Placement.
(id) no Default or Event ESL shall have received a fully-executed Lock-Up Agreement from each shareholder of Default has occurred and is continuing or would result from such acquisition;the Company as set forth in Paragraph 6(c) hereof.
(iie) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower ESL shall have delivered received a certified copy of the resolution of the Board of Directors of the Company authorizing the transactions contemplated herein.
(f) The Company shall have filed with the Office of the Secretary of State of Nevada a Certificate of Designation acceptable to the Administrative Agent a duly executed certificate ESL, substantially in the form of attached hereto as Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;"C".
(iiig) all actions The Company shall have been taken amended its Bylaws in such a manner as to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply make its Bylaws consistent with the terms and conditions set forth in §9.15;of this Agreement and the transactions contemplated herein, a copy of which will have been provided to ESL.
(vh) Prior to the board closing of directors and (if required by applicable law) the shareholders, or the equivalent thereof, each Phase of the business to be acquired has approved Private Placement, the escrow agent, Cardinal International Bank & Trust Company, Ltd. (the "Escrow Agent") shall have received a certificate representing the Placement Agent's Shares earned for each such acquisition;Phase.
(vii) all Prior to the closing of each of Phase I, Phase II and Phase III of the Borrower’s and/or its Subsidiaries’ Private Placement, the Escrow Agent shall have received a fully executed subscription agreement from each subscriber to Phase I, Phase II and Phase III, respectively.
(as the case may bej) rights ESL shall have received an opinion addressed to ESL and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition subscriber to the extent permitted have been assigned Private Placement, from counsel satisfactory to ESL, concerning the Administrative Agent as security for the irrevocable payment and performance in full merger of the ObligationsPLACEMENT AGREEMENT OF VENTURI TECHNOLOGY ENTERPRISES, pursuant to Collateral Assignments of Contracts INC. Page 14 15 Company with and into Hi-Tek Carpet Care, Inc., in form and substance reasonably satisfactory to Administrative Agent;ESL.
(viik) in Prior to the case closing of any acquisition involving domestic radio or television assetseach Phase of the Private Placement, the FCC ESL shall have issued orders approving or consenting had the opportunity to such acquisition;
(viii) review the Borrower shall have delivered business and financial milestones set forth on Exhibit "F' and to ascertain the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionCompany's compliance therewith.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and nor will not the Borrower permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except so long as no Default or Event of Default has occurred or is continuing, or enter into any LMA Agreement, except:would exist after giving effect thereto,
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;; and
(b) after other asset or stock acquisitions of Persons predominantly in the Revert business of property and casualty insurance or other businesses already conducted by the Borrower on the Closing Date upon (a “Permitted Acquisition”) where (i) the Borrower has provided the Administrative Agent with five (5) Business Days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition; (ii) such Permitted Acquisition is non-hostile in nature; (iii) the Borrower or a Subsidiary of the Borrower would be the surviving entity in such Permitted Acquisition (iv) the business to be acquired operates within the United States; (v) the business and assets to be acquired in such Permitted Acquisition shall be acquired by the Borrower or such Subsidiary free and clear of all liens (other than Permitted Liens) and all Indebtedness (other than Permitted Indebtedness); (vi) no contingent obligations or liabilities will be incurred or assumed in connection with such Permitted Acquisition which would reasonably be expected to have a Material Adverse Effect; (vii) the Borrower has provided the Administrative Agent with such other information as has been reasonably requested by the Administrative Agent; (viii) the Borrower has taken or caused to be taken all necessary actions to grant to the Administrative Agent a first priority perfected lien in all assets and stock to be acquired in connection with such Permitted Acquisition subject to applicable law and provided that any acquired Person which would be an Insurance Subsidiary shall not be required to xxxxx x Xxxx on any assets other than Non-Admitted Assets; (ix) the Borrower has demonstrated to the reasonable satisfaction of the Administrative Agent, based on a pro forma Compliance Certificate, compliance with §9 on a pro forma basis immediately prior to and after giving effect to such Permitted Acquisition; (x) the acquisition aggregate purchase price (whether pursuant to an Asset Swap or otherwiseincluding assumed debt and seller paper) of stockfor Permitted Acquisitions does not exceed $10,000,000 for any particular Permitted Acquisition individually, or other securities of, or any assets of, any Person, $30,000,000 in each case the aggregate during the term of this Credit Agreement and (xi) the Borrower has delivered to the extent Administrative Agent a certificate of the chief financial officer of the Borrower to the effect that (1) the Borrower will be solvent upon the consummation of the Permitted Acquisition; (2) the pro forma Compliance Certificate fairly presents the financial condition of the Borrower and its Subsidiaries as of the date thereof and after giving effect to such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
Permitted Acquisition and (i3) no Default or Event of Default has occurred and is continuing then exists or would result from such acquisition;
(ii) not less than five (5) Business Days prior after giving effect to the consummation Permitted Acquisition. In the event any new Subsidiary is formed as a result of such proposed acquisitionor in connection with any Permitted Acquisition, simultaneously therewith, the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Subsidiary. In the case of the Borrower forming or purchasing such Subsidiary, such Subsidiary (other than any Insurance Subsidiary) shall have delivered become a Subsidiary Guarantor hereunder, and shall grant to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agenta perfected, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts Security Agreement and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionother Security Documents.
Appears in 1 contract
Samples: Revolving Credit Agreement (Safety Insurance Group Inc)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liensLiens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
(c) other media-related acquisitions not included in clause (b) above, provided that (i) so long as the Total Leverage Ratio calculated on a Pro Forma Basis after giving effect to such acquisition is greater than 6.00:1.00, the aggregate purchase price for all such acquisitions, whether payable in cash or otherwise, shall not exceed $150,000,000, and (ii) each of the conditions set forth in clause (b)(i) through (xi) above shall have been satisfied;
(d) the Borrower or any of its Subsidiaries may enter into LMA Agreements provided that (i) at the time the Borrower or such Subsidiary enters into an LMA Agreement, no Default or Event of Default has occurred and is then continuing or could reasonably be expected to result as a consequence of entering into such LMA Agreement, (ii) if (A) the Borrower or any of its Subsidiaries has acquired an option to acquire a Station or is otherwise obligated to purchase a Station in connection with such LMA Agreement or in a related transaction or (B) such LMA Agreement is material as determined in the reasonable judgment of the Administrative Agent after consultation with the Borrower, then, in each case, all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each such LMA Agreement shall have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance satisfactory to Administrative Agent, (iii) if such LMA Agreement contemplates a Station acquisition, such Station acquisition must satisfy the provisions of clause (b) above; provided that, if such LMA Agreement grants the Borrower or such Subsidiary an option to purchase a Station, the relevant date for determining whether the provisions of clause (b) above have been satisfied with respect to such acquisition shall be a date not earlier than five (5) Business Days prior to the date on which the Borrower or such Subsidiary proposes to exercise such option, with the intent that this clause (iii) shall not operate to prevent the Borrower or such Subsidiary from entering into such LMA Agreement if all of the other conditions of this clause (d) have been satisfied, save that the provisions of clause (b) cannot be satisfied with respect to such optional acquisition on the date of the Borrower’s or such Subsidiary’s entry into such LMA Agreement, (iv) if such LMA Agreement contemplates an Asset Sale or Asset Swap, such Asset Sale or Asset Swap is otherwise permitted pursuant to §10.5 hereof, and (v) the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto; and
(e) any Investments permitted under §10.3.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Emmis Operating Co)
Mergers and Acquisitions. The Borrower will not, and Borrowers will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except the merger or consolidation of, or enter into asset or stock acquisitions between existing Borrowers and except as otherwise provided in this §7.4.
1. The Borrowers may purchase or otherwise acquire all or substantially all of the assets or stock or other equity interests of any LMA Agreement, exceptother Person provided that:
(a) upon prior written notice the Borrowers are in current compliance with and, giving effect to the Administrative Agentproposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in compliance with all of the covenants in §8 hereof on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement; provided, that, in the case of transactions involving cash consideration to be paid by the Borrowers (including cash deferred payments, contingent or otherwise, and the aggregate amount of all Funded Debt assumed) in excess of $5,000,000, the merger or consolidation of one (1) or more Administrative Agent and the Banks shall have received a Compliance Certificate demonstrating compliance with §8 on a pro forma historical combined basis as if the transaction occurred on the first day of the Operating Subsidiaries period of measurement (any acquisition requiring cash consideration (including cash deferred payments, contingent or otherwise, and the Borrower with and into the Borrower, or the merger or consolidation aggregate amount of two (2all Funded Debt assumed) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries in excess of the Borrower, so long $5,000,000 being referred to as in each case the surviving Subsidiary is a Guarantor“Material Acquisition”);
(b) after at the Revert Date upon prior written notice to the Administrative Agenttime of such acquisition, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or would result from such acquisitionan Event of Default hereunder;
(iic) the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto (e.g., non-hazardous solid waste collection, transfer, hauling, recycling, or disposal);
(d) the business to be acquired operates predominantly in the continental United States and/or Canada;
(e) all of the assets to be acquired shall be owned by an existing or newly created Subsidiary of the Parent which Subsidiary shall be a Borrower, 100% of the assets (other than motor vehicle titles and real estate) and stock or other equity interests of which have been or, simultaneously with such acquisition, will be pledged to the Collateral Agent on behalf of the Banks and the Noteholders in accordance with the Intercreditor Agreement or, in the case of a stock or other equity interest acquisition, the acquired company, simultaneously with such acquisition, shall become a Borrower or shall be merged with and into a wholly owned Subsidiary that is a Borrower and such newly acquired or created Subsidiary shall otherwise comply with the provisions of §6.16 hereof;
(f) not less later than five seven (57) Business Days days prior to the consummation proposed acquisition date, a copy of the purchase agreement and financial projections, together with audited (if available, or otherwise unaudited) financial statements for any Subsidiary to be acquired or created, for the preceding two (2) fiscal years or such proposed acquisition, the Borrower shorter period of time as such Subsidiary has been in existence shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide furnished to the Administrative Agent, for only in cases of Material Acquisitions or upon request by the benefit Administrative Agent;
(g) not later than seven (7) days prior to the proposed acquisition date, (1) a summary of the Lenders Borrowers’ results of their standard due diligence review, and (2) in the case of a landfill acquisition, a review by a Consulting Engineer and a copy of the Consulting Engineer’s report shall have been furnished to the Administrative Agent, a first priority perfected security interest only in all cases of Material Acquisitions or upon request by the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted LiensAdministrative Agent;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(vh) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vii) all if such acquisition is made by a merger, a Borrower, or a wholly-owned Subsidiary of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person Parent which shall become a Borrower in connection with such merger, shall be the surviving entity;
(j) cash consideration to be paid by such Borrower in connection with any such acquisition to or series of related acquisitions (including cash deferred payments, contingent or otherwise, and the extent permitted have been assigned to aggregate amount of all Funded Debt assumed), shall not exceed $10,000,000 without the consent of the Administrative Agent as security for and the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative AgentMajority Banks;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viiik) the Borrower aggregate cash consideration to be paid by all Borrowers in connection with all such acquisitions or series of related acquisitions (including cash deferred payments, contingent or otherwise, and the aggregate amount of all Funded Debt assumed) during any period of four (4) consecutive fiscal quarters, shall have delivered to not exceed $30,000,000 without the consent of the Administrative Agent evidence reasonably and the Majority Banks; and
(l) the terms and conditions of any Indebtedness incurred or assumed by such Borrower in connection with any such acquisition or series of related acquisitions (other than Indebtedness permitted under Sections 7.1(e)) shall be satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Industries Usa Inc)
Mergers and Acquisitions. The Neither the Guarantor nor the Borrower will notwill, and neither will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) or enter into open any LMA Agreement, except:
new Stores except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, (c) the merger of the Borrower with the Guarantor, (d) the Guarantor and/or the Borrower shall be permitted to enter into an agreement to effect a merger so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that Guarantor and/or the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be, provide the Lenders with written notice promptly after entering into such merger agreement, which notice shall set forth the terms of such agreement in reasonable detail; (ii) rights such merger agreement provides for the indefeasible repayment in full, in cash, of all of the Obligations and interests ina termination of the Total Commitment immediately upon the consummation of the contemplated merger; and (iii) the Guarantor or the Borrower, to and as the case may be, shall incur no liability or expense under each contract and agreement entered into by such Person in connection with such acquisition the terms of the merger agreement, other than reasonable expenses for professional fees related thereto or (e) subject to the extent permitted have been assigned to other requirements of this Credit Agreement, the Administrative Agent as security for acquisition or opening of new Stores by the irrevocable payment and performance Borrower provided that (i) the Borrower acquires or opens no more than ten new Stores per fiscal year or, in full the case of the ObligationsBorrower's fiscal year ended February 2001, pursuant to Collateral Assignments of Contracts in form eleven new Stores and substance reasonably satisfactory to Administrative Agent;
(viiii) in the case of any a stock acquisition involving domestic radio or television assetsof new Stores, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) acquired Person is immediately merged with and into the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to being the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionsurviving entity.
Appears in 1 contract
Mergers and Acquisitions. The Borrower None of the Borrowers will not, and none will not permit any of its their Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (aother than the acquisition of assets in the ordinary course of business consistent with past practices) upon prior written notice to the Administrative Agent, except the merger or consolidation of one (1) or more of the Operating Subsidiaries of any of the Borrower Borrowers with and into any of the BorrowerBorrowers so long as such Borrower is the survivor of such merger, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of any of the BorrowerBorrowers; provided however, so long as in each case that (a) prior to December 31, 1998 the surviving Subsidiary is a Guarantor;
Borrower may make the EVAP Acquisition and (b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all occurrence of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and the Borrowers or a Subsidiary may make acquisitions (including, without limitations, mergers or consolidations in which the Borrowers or one of their Subsidiaries is continuing the surviving corporation) so long as (i) the acquired entity conducts the same or would result from such acquisition;
similar line of business as the Borrowers in all material respects, (ii) not less than five any of the Borrowers shall take title to all of the assets of the acquired entity, (5iii) Business Days prior to the consummation of the acquisition would not otherwise cause a Default or an Event of 89 -81- Default or have caused a Default or Event of Default if such proposed acquisition, acquisition had occurred during the Borrower shall prior fiscal year and the Borrowers have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken demonstrated to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionacquisition and the incurrence of Indebtedness in connection therewith, the Borrowers shall be in compliance, on a pro forma basis, with the financial covenants set forth in Section 10 recomputed for the most recent month for which information is available and shall be in compliance with all other terms of the Credit Agreement, and (iv) the aggregate total consideration constituting the total purchase price of all assets acquired after the Closing Date does not exceed $5,000,000 per annum.
Appears in 1 contract
Mergers and Acquisitions. The Borrower Borrowers will not, and will not permit or suffer any of its the Designated Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than (x) the acquisition of assets in the ordinary course of business consistent with past practices, (y) acquisitions of assets consisting of Investments which are permitted by Sections 11.3(a), (b), (c), (d), (e), (f), (k), (m), (p), (r), (s) (u), (v) or enter into any LMA Agreement(w) hereof, and (z) the formation of a newly formed Subsidiary pursuant to, and to the extent permitted by, Sections 11.3(m) or 11.3(o) hereof) except:
(a) upon prior written notice to the Administrative Agentso long as no Default or Event of Default would result therefrom, the merger or consolidation of (i) one (1) or more of the Operating Designated Subsidiaries with and into one of the Borrowers, (ii) one or more of the other Subsidiaries of the Borrowers with and into one of the Borrowers or a Designated Subsidiary, (iii) two or more of the Designated Subsidiaries or (iv) a Borrower with and into the other Borrower; provided, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case that the surviving Subsidiary is entity in any such merger permitted by this clause (a) shall be a GuarantorBorrower or a Designated Subsidiary;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition acquisitions (whether pursuant to an Asset Swap or otherwiseexclusive of Consolidated Capital Expenditures permitted by Section 12.4) of stock, assets or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
stock so long as (i) no Default or Event the cash consideration for such acquisition does not exceed ten percent (10%) of Default has occurred and Consolidated Tangible Net Assets at the time a definitive agreement for such acquisition is continuing or would result from such acquisition;
executed for any fiscal year, (ii) not less than five (5) Business Days prior with respect to any such acquisitions of assets, the Domestic Borrowers, or either of them, take title to the consummation assets so acquired, (iii) such assets or stock acquired are related to the business of one of the Borrowers or their Subsidiaries, and (iv) with respect to any such acquisitions of stock (A) simultaneously with the occurrence of such proposed acquisition, the Borrower entity so acquired shall either be merged or consolidated with and into one of the Domestic Borrowers or shall transfer all of its assets (other than those required to satisfy liabilities) to the Domestic Borrowers, or either of them, or (B) the Agent shall have delivered consented to the Administrative Agent a duly executed certificate substantially such acquisition in the form of Exhibit F heretowriting in its sole discretion; provided, and however, that with respect to any stock acquisition referred to in clause (B) above (1) upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment effectiveness of the Administrative Agent, to demonstrate that, after giving effect to any such acquisition, the newly acquired Subsidiary shall become a Designated Subsidiary for all covenants contained herein will be satisfied on a Pro Forma Basis purposes under this Credit Agreement and that the Borrower’s ability to satisfy its payment obligations hereunder and under each of the other Loan Documents will not be impaired in (except for any way;
provisions of this Credit Agreement relating to events, circumstances or agreements relating specifically to dates or periods prior to such newly acquired Subsidiary's having become a Designated Subsidiary under the Loan Documents), (iii2) all actions have been taken prior to the reasonable satisfaction effectiveness of any such acquisition, the Borrowers shall have provided the Agent with any information necessary to supplement Schedule 9.18 hereto and such supplemental information, together with such schedule and any prior supplements, shall thereupon be deemed to constitute Schedule 9.18 for all purposes of this Credit Agreement, (3) within one calendar year following the closing date of such acquisition, (y) the newly acquired Subsidiary shall have either been merged or consolidated with and into either of the Administrative Agent Domestic Borrowers or transferred all of its assets (other than those required to provide satisfy liabilities) to the Administrative AgentDomestic Borrowers, for or either of them, or (z) the benefit Borrowers shall have caused such newly acquired Subsidiary to agree to guaranty the full payment and performance by the Borrowers of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) Obligations pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and guaranty agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;the Agent and the Lenders; and
(viic) in the case acquisitions of any acquisition involving domestic radio Zale xxxck permitted by Section 11.3(s) or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms repurchases of the contracts and agreements entered into Zale xxxck otherwise permitted by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionSection 11.4.
Appears in 1 contract
Mergers and Acquisitions. The (a) Borrower will shall not, and will not permit any shall cause each of its Subsidiaries not to, become a party to any mergerdirectly or indirectly, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation by operation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap law or otherwise) of stock, or other securities ofmerge with, or any assets ofconsolidate with, any Person, in each case to the extent such acquisition would involve acquire all or substantially all of the assets or capital Stock of, or otherwise combine with, any Person, or acquire all or substantially all of the assets of an operating division of any Person, or form any Subsidiary; provided, however, that subject to subparagraph (b) hereof, Borrower shall be permitted to make acquisitions of the assets or Stock of any Person or Persons, so long as, after giving effect to any such acquisition, the Aggregate Purchase Price for all such acquisitions made during the term of this Agreement pursuant to this Section 6.1(a) does not exceed the available amount under the Repayment/Acquisition Basket as evidenced by a radio broadcastingcertificate of a Responsible Officer delivered to Agent not less than three (3) Business Days prior to such acquisition indicating that the conditions contained in this Section 6.1(a) shall have been satisfied; and, television broadcasting or publishing business or business unit thereofprovided, provided that:
further, that (i) Borrower may dissolve any Subsidiary of Borrower (other than Figgie Properties or Figgie Real Estate to the extent Figgie Properties or Figgie Real Estate owns assets other than cash or Cash Equivalents), (ii) any Subsidiary of Borrower may merge, consolidate or otherwise combine with Borrower or any other Subsidiary of Borrower so long as (v) if Borrower is a party to such transaction, Borrower shall be the surviving corporation, (w) no Default or Event of Default has shall have occurred and be continuing immediately before and after giving effect to such merger, consolidation or combination, (x) if an Unrestricted Subsidiary is continuing a party 52 to such transaction, the surviving corporation shall not be a Restricted Subsidiary, (y) if Borrower is not a party to such transaction, the surviving corporation shall be a wholly- owned Subsidiary of Borrower and if a Domestic Subsidiary is party to such transaction, the surviving corporation shall be a Domestic Subsidiary, and (z) if either Figgie Properties or Figgie Real Estate is a party to such transaction, (A) Borrower shall be the surviving corporation and (B) immediately prior to such merger, consolidation or combination, neither Figgie Properties nor Figgie Real Estate, as the case may be, shall own any assets (other than cash or Cash Equivalents), and (iii) Borrower may make Investments to the extent permitted by Section 6.2(vii).
(b) Borrower shall not make any such acquisition unless:
(i) immediately before and after giving effect thereto, (A) any Subsidiaries acquired or created in connection with such acquisition shall be a wholly-owned Subsidiary of Borrower and shall be in compliance with all warranties and representations and affirmative and negative covenants under this Agreement, and (B) there shall exist no Default or Event of Default and no Default or Event of Default would result from such acquisitionbe created;
(ii) not less than five (5) Business Days prior in the event of an asset acquisition, any acquired asset that is of the type that would be required to be pledged as "Collateral" if it were owned by Borrower on the Closing Date, shall be pledged as Collateral to Agent, for the ratable benefit of Lenders, pursuant to a security agreement in form and substance substantially similar to the consummation of such proposed acquisitionBorrower Security Agreement and Borrower Pledge Agreement, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F heretoas applicable, and upon the Administrative otherwise reasonably satisfactory to Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, (A) Borrower shall pledge to Agent, for the ratable benefit of Lenders, the Stock of any newly created or acquired Person Subsidiary and each of its Subsidiaries, if any, (B) such Subsidiary and each of its Subsidiaries, if any, shall become be an Unrestricted Subsidiary, and (C) such Subsidiary and each of its Subsidiaries, if any, shall each execute a wholly-owned Subsidiary Guaranty that will be secured by all of the Borrower its respective assets and shall comply with the terms and conditions set forth in §9.15a Subsidiary Security Agreement and, if applicable, a Mortgage;
(viv) any such entity acquired shall be engaged in a line of business similar to that conducted at the board time of directors and (if required such acquisition by applicable law) Sxxxx Aviation, the shareholdersSnorkel Division, the Txxxxx Division or the equivalent thereof, of the business to be acquired has approved such acquisition;Interstate Electronics; and
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(viiv) in the case of any acquisition involving domestic radio or television assetsfor which the Aggregate Purchase Price is in excess of $5,000,000, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative given Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or 30 days' advance written notice of such Subsidiary has completed such acquisition in accordance with the terms acquisition, including a brief 53 description of the contracts property being acquired, the Aggregate Purchase Price (or range) thereof, and agreements entered into by the Person from whom such Person in connection with such acquisitionproperty is being acquired, and (B) certified copies on the date of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, a certification, in a form acceptable to Agent, from a Responsible Officer stating that Borrower has complied with clause (b)(i) of this Section 6.1; provided, however, that any liabilities that are assumed by Borrower or any newly created or acquired Subsidiary of Borrower (including accounts payable) shall not be assumed by Borrower unless any such liability is in a quantifiable amount (or, if not in a quantifiable amount, a maximum amount that can be reasonably ascertained by Borrower) and the Borrower liability assumed is not greater than the amount permitted under the Repayment/Acquisition Basket, provided that a Responsible Officer shall have delivered to Agent immediately prior to any such acquisition a certificate as to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitioncalculation of the Repayment/Acquisition Basket.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and Borrowers will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except as otherwise provided in this ss.
9.5.1. Any of the Borrowers may acquire the assets or stock of any other Borrower, or enter may merge or consolidate with or into any LMA Agreementother Borrower, except:
(a) upon prior written notice to provided that, in the Administrative Agent, the case of a merger or consolidation of one (1) or more the Parent and a Borrower, the Parent shall be the surviving entity. Any of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve Borrowers may acquire all or substantially all of a radio broadcasting, television broadcasting the assets or publishing business or business unit thereofCapital Stock of any Person, provided that:
(ia) for Material Acquisitions, the Borrowers shall have delivered to the Administrative Agent a Compliance Certificate certifying they are in current compliance with and, giving effect to the proposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in compliance with all of the covenants in ss.10 hereof on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement;
(b) at the time of such acquisition, no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or would result from such acquisitionan Event of Default hereunder;
(iic) not less than five the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto;
(5d) Business Days prior the business to be acquired operates predominantly in the consummation continental United States or Canada;
(e) all of the assets to be acquired shall be owned by an existing or newly created Subsidiary of the Parent which Subsidiary shall be a Borrower, one hundred percent (100%) of the assets (excluding motor vehicle equipment) and Capital Stock (or 65% of the Capital Stock in the case of a foreign Subsidiary) of which have been or, simultaneously with such proposed acquisition, the Borrower shall have delivered will be pledged to the Administrative Agent a duly executed certificate substantially on behalf of the Lenders (subject to Permitted Liens) or, in the form case of Exhibit F heretoa stock or other equity interest acquisition, the acquired company, simultaneously with such acquisition, shall become a Borrower or shall be merged with and upon into a wholly owned Subsidiary that is a Borrower and such newly acquired or created Subsidiary shall otherwise comply with the provisions of ss.8.14 hereof;
(f) for Material Acquisitions, not later than seven (7) days prior to the proposed acquisition date, a copy of the purchase agreement and financial projections, together with audited (if available, or otherwise unaudited) financial statements for any Subsidiary to be acquired or created for the preceding two (2) fiscal years or such shorter period of time as such Subsidiary has been in existence shall have been furnished to the Administrative Agent’s request;
(g) for Material Acquisitions, such financial projections as shall be necessarynot later than seven (7) days prior to the proposed acquisition date, (i) a summary of the Borrowers' results of their standard due diligence review, and (ii) in the reasonable judgment case of a landfill acquisition, including a review by a Consulting Engineer and a copy of the Consulting Engineer's report shall have been furnished to the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iiih) cash consideration to be paid by such Borrower in connection with any such acquisition or series of related acquisitions (including the aggregate amount of all actions have been taken to Indebtedness assumed or incurred), shall not exceed $15,000,000 without the reasonable satisfaction prior written consent of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted LiensRequired Lenders;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(vi) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business Person to be acquired has approved such acquisition;; and
(vij) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with if such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligationsis made by a merger, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the a Borrower shall have delivered to be the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionsurviving entity.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Iesi Corp)
Mergers and Acquisitions. The Borrower will not, and will ------------------------ not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, ; (b) or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
; (bc) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition of the assets and/or stock of Delphi Partners, Inc. (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof"Delphi Acquisition"), provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
continuing, (ii) not less than the Borrower has delivered to the Agent all documents, instruments and agreements to be entered into in connection therewith; and (iv) the Borrower has demonstrated to the Agent compliance with (S)8.5.1(d)(iii) - (iv) hereof; and (d) other asset or stock acquisitions of Persons in the same or a similar line of business as the Borrower (a "Permitted Acquisition", and, collectively with the Delphi Acquisition, the "Permitted Acquisitions") where (i) the Borrower has provided the Agent with five (5) Business Days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition; (ii) the Borrower has provided the Agent with all documents, instruments and agreements to be entered into in connection with the Permitted Acquisition; (iii) the business to be acquired would not subject the Agent or any of the Banks to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Credit Agreement and the other Loan Documents; (iv) the business and assets so acquired in such Permitted Acquisition shall be acquired by the Borrower free and clear of all liens (other than Permitted Liens) and all Indebtedness (other than Indebtedness expressly permitted pursuant to (S)8.1 hereof); (v) the Borrower has taken or caused to be taken all necessary actions to grant to the consummation of Agent a first priority perfected lien in all assets and stock to be acquired in connection with such proposed acquisition, Permitted Acquisition; (vi) the Borrower shall have has demonstrated to the satisfaction of the Agent, based on a pro forma Compliance Certificate (which pro forma Compliance Certificate has been prepared with a methodology consistent with that used in preparing the projections delivered to the Administrative Agent and the Banks on the Closing Date), compliance with (S)9 hereof of a duly executed certificate substantially in the form of Exhibit F hereto, pro forma basis both immediately prior to and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
Permitted Acquisition; (iiivii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with is the terms and conditions set forth in §9.15;
(v) the board survivor of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person any merger consummated in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment Permitted Acquisition; and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have has delivered to the Administrative Agent evidence reasonably satisfactory a certificate of the chief financial officer of the Borrower to the Administrative Agent effect that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix1) the Borrower shall have delivered to will be solvent on a going-concern basis upon the Administrative Agent consummation of the Permitted Acquisition; (A2) evidence satisfactory to the Administrative Agent that pro forma Compliance Certificate fairly presents the financial condition of the Borrower or such Subsidiary has completed such acquisition in accordance with the terms and its Subsidiaries as of the contracts date thereof and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such Permitted Acquisition and (3) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition. In the event any new Subsidiary is formed or acquired as a result of or in connection with any acquisition, the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Subsidiary.
Appears in 1 contract
Samples: Revolving Credit Agreement (Answer Think Consulting Group Inc)
Mergers and Acquisitions. The Borrower will shall not, and will shall not permit any of its their Restricted Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreementmerger or consolidation with, exceptor acquire all or substantially all of the assets or stock of, any Person, or sell, assign, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to any Person, except for:
(a) upon prior written notice to The acquisition by the Administrative AgentBorrower or Restricted Subsidiary (for purposes of this definition, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise"Acquiror") of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcastingthe assets or stock of another Person (including, television broadcasting or publishing business or business unit thereofwithout limitation, provided that:
acquisition by merger), PROVIDED THAT (i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the acquisition Borrower shall have has delivered to the Administrative Agent and the Lenders a duly executed certificate substantially in to the form of Exhibit F hereto, effect that no Default has then occurred and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, continues to demonstrate thatexist or would, after giving effect to such acquisition, all covenants contained herein will occur, which certificate shall be satisfied accompanied by consolidated and consolidating financial statements of the Acquiror prepared on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting pro forma basis after giving effect to such acquisition;
, (viiiii) simultaneously with the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed consummation of such acquisition in accordance with the terms any new Subsidiary arising as a result of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired or in connection with such acquisition shall be transferred immediately upon consummation enter into a Guaranty substantially in the form of the Guaranty Agreements and the Acquiror and such new Subsidiary shall grant to the Agent and the Lenders a first priority security interest in the assets and/or stock so acquired, provided, however, that the requirement to enter into a Guaranty and grant such security interest shall not apply to any new Subsidiary whose assets have a fair market value of $50,000 or less or any new Subsidiary which is an Unrestricted Subsidiary, (iii) the aggregate purchase price does not exceed $20,000,000; and (iv) there are no Advances, other than Letters of Credit, outstanding under this Agreement at the time of such acquisition to acquisition.
(b) Mergers of the Borrower or a License SubsidiaryGuarantor with and into any other Borrower or Guarantor, PROVIDED, HOWEVER, that the surviving corporation shall be the Borrower or Guarantor;
(xic) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(bAsset Dispositions permitted under Section 9.4 hereof; and
(d) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionRestricted Investments permitted under Section 9.9(g).
Appears in 1 contract
Mergers and Acquisitions. (a) The Borrower Borrowers and Guarantors will not, and will not permit any of its their Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, except the merger or consolidation of one (1) or more of the Operating Subsidiaries of the a Borrower with and into the such Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;Borrowers.
(b) after The Borrowers and Guarantors will not, and will not permit any of their Subsidiaries to, become a party to any acquisition (other than acquisitions of assets in the Revert Date upon prior written notice to the Administrative Agent, ordinary course of business) other than the acquisition (a "Permitted Acquisition") (whether pursuant to an Asset Swap of stock or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of the assets of a radio broadcasting, television broadcasting or publishing business or business unit thereof, division as a going concern or by means of a merger or consolidation) of a majority interest in any other Person (the "Target") provided that:
that (i) the Target is in a substantially similar or complementary business as the Borrowers, (ii) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, exist after giving effect to such acquisitionthereto, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken if such Borrower, such Guarantor, or such acquiring Subsidiary merges with the Target, such Borrower, such Guarantor or such Subsidiary, as the case may be, is the surviving party, (iv) if the Target becomes a Subsidiary of a Borrower, a Guarantor or any of their Subsidiaries, it shall deliver a guaranty as provided in Section 29 hereof and, in connection therewith, shall pledge to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in substantially all of the assets so acquired its assets, (excluding any Excluded Assetsv) pursuant Xxxxxxx-Xxxxxxx has delivered to the Security DocumentsAgent Compliance Certificates demonstrating, free of all Liens other than Permitted Liens;
(iv) in the event of a stock both immediately prior to and immediately after such acquisition, the acquired Person shall become compliance on a wholly-owned Subsidiary of the Borrower and shall comply Pro Forma Basis with the terms and conditions covenants set forth in §9.15;
(v) the board Section 12 of directors and (if required by applicable law) the shareholdersthis Credit Agreement, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower board (and shareholders, if required by law) of the Target shall have delivered to approved the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquiredacquisition, other than Permitted liens, have been discharged in full;
(ix) the Borrower Borrowers shall notify the Agent and the Lenders of the proposed acquisition at least 30 days in advance thereof, such notice to include an information package sufficient for the Lenders to evaluate such acquisition, (x) the Target and its Subsidiaries shall have delivered positive Adjusted EBITDA on a Pro Forma Basis for the period of four consecutive fiscal quarters most recently ended, (xi) the aggregate amount borrowed in the form of Revolving Credit Loans at any time (without giving effect to any repayments of such borrowings) for Permitted Acquisitions shall not exceed $15,000,000 in the aggregate prior to the Administrative Agent Revolving Credit Loan Maturity Date, provided that such limitation may be increased to $20,000,000 (A) evidence satisfactory to with the Administrative consent of the Agent that or (B) if the Borrower or such Subsidiary has completed such total borrowing for the proposed acquisition does not exceed 5.5 times the pro forma Adjusted EBITDA of the Target, (xii) after the proposed acquisition becomes effective the Borrowers shall own a majority of equity interests in accordance with the Target, shall control a majority of the Voting Stock in the Target, and shall otherwise control the governance of the Target, (xiii) the terms of the contracts and agreements entered into by such Person any seller paper or subordinated debt issued or incurred in connection with such acquisition, and the proposed acquisition shall (A) be in compliance with the limits set forth Section 11.1 (B) certified copies of all such documents shall have been delivered contain no financial covenants more restrictive than those contained in the Senior Subordinated Debt Documents, (C) be unsecured and (D) be subordinated on terms no more disadvantageous to the Administrative Agent;
Lenders than the Senior Subordinated Debt; and (xxiv) all FCC Licenses acquired the Agent shall be satisfied with the environmental due diligence conducted in connection with such the proposed acquisition and shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously satisfied with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionresults thereof.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Russell-Stanley Holdings Inc)
Mergers and Acquisitions. The Borrower will not, and will not ------------------------ permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition of all or substantially all the assets of any Person or any operating unit of any Person or stock acquisition, or enter into any LMA Agreement, except:
acquisition other than (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries another Person solely to effect a conversion of the Borrower, so long as in each case the surviving Subsidiary is Borrower to a Guarantor;
corporate entity; (b) after the Revert Date upon acquisition of assets in the ordinary course of business consistent with past practices; (c) the Permitted Financed Acquisitions; (d) other asset or stock acquisitions of Persons in the same or a similar line of business as the Borrower or its Subsidiary (the "Other Permitted Acquisitions", and, collectively with the acquisitions permitted by paragraphs (a), (b) and (c) hereof, the "Permitted Acquisitions") where (i) the Borrower has provided the Agent with five (5) Business Days prior written notice of such Other Permitted Acquisition, which notice shall include a reasonably detailed description of such Other Permitted Acquisition and the documents, agreements and instruments to be entered into in connection with such Other Permitted Acquisition; (ii) the business to be acquired would not subject the Banks or the Agent to regulatory or third party approvals in connection with the exercise of their rights and remedies under this Credit Agreement or any other Loan Documents; (iii) the business and assets so acquired shall be acquired by the Borrower or such Subsidiary free and clear of all liens (other than as permitted by (S)12.2 hereof) and all Indebtedness (other than as permitted by (S)12.1 hereof); (iv) the Borrower or such Subsidiary has taken all necessary actions to grant to the Administrative AgentAgent a first priority perfected lien on all assets and stock to be acquired in connection with such Other Permitted Acquisition (other than Permitted Liens) and, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent applicable, has provided the Agent with all documents, agreements and information required pursuant to (S)11.14 hereof; (v) the Borrower has demonstrated to the reasonable satisfaction of the Agent, based on a pro forma Compliance Certificate, --- ----- compliance with (S)13 hereof on a Pro Forma Basis immediately prior to and after giving effect to such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
Other Permitted Acquisition; and (ivi) no Default or Event of Default has occurred and is continuing or would exist as a result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis Other Permitted Acquisition; (e) the merger or consolidation of one or more of the Subsidiaries of the Borrower with and that into the Borrower’s ability to satisfy its payment obligations hereunder and under , or (f) the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction merger or consolidation of two or more Subsidiaries of the Administrative Agent to provide to the Administrative AgentBorrower. In addition, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event any new Subsidiary is formed as a result of a stock or in connection with any acquisition, the acquired Person Loan Documents shall become a wholly-owned Subsidiary of the Borrower and shall comply with be amended and/or supplemented as necessary to make the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business Loan Documents applicable to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (new Subsidiary as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full a guarantor of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Mergers and Acquisitions. (a) The Borrower will not, and will not permit any of its Subsidiaries to, to become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (aother than the acquisition of assets in the ordinary course of business consistent with past practices) upon prior written notice to the Administrative Agent, except the merger or consolidation of one (1) or more of the Operating wholly-owned Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;.
(b) after Notwithstanding the Revert Date upon prior written notice provisions of Section 8.5.1(a), the Borrower may become a party to any asset acquisition or stock acquisition (each, a "Permitted Acquisition") if the following conditions have been met: (i) the proposed transaction will not otherwise create a Default or Event of Default; (ii) the Person being acquired (or whose assets are being substantially acquired) shall be predominantly involved in the existing lines of business of the Borrower or in lines of business substantially related thereto; (iii) all of the assets material to the Administrative Agent, operation of the acquisition (whether pursuant to an Asset Swap business of the Person being acquired or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred the assets being acquired and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior material to the consummation operation of such proposed acquisition, the business of the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially be located in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
North America; (iv) in the event of a stock acquisition, the acquired Person Borrower shall become a wholly-owned Subsidiary have complied with the provisions of Section 7.13 to the satisfaction of the Borrower and shall comply with the terms and conditions set forth Bank in §9.15;
its reasonable discretion; (v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has shall have approved such acquisition;
transaction; (vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to provided calculations showing compliance with the Administrative Agent evidence covenants set forth in Section 9 on a pro forma historical combined basis as if the proposed transaction occurred on the first day of the period of measurement; (vii) the business being acquired shall have had positive operating cash flow for at least the two (2) fiscal years immediately preceding the acquisition, as such operating cash flow may be adjusted, in a manner reasonably satisfactory to the Administrative Agent, to reduce management compensation expense in any such two-year period to an amount which reflects projected management compensation expense on an ongoing basis, following the acquisition and (viii) the Agent that all liens and encumbrances with respect shall have received at least ten (10) days prior to the properties and assets so acquiredacquisition, other than Permitted liens, have been discharged in full;
(ix) an accurate summary of the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the material terms of the contracts and agreements entered into by such Person in connection with such acquisitiontransactions, and (B) certified copies including a copy of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such applicable acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionagreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Bridgestreet Accommodations Inc)
Mergers and Acquisitions. The No Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (aother than the acquisition of assets in the ordinary course of business consistent with past practices) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or except the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries Borrowers and except as otherwise provided in this Section 7.4. The Parent may purchase or (B) License Subsidiaries otherwise acquire all or substantially all of the Borrowerassets or stock of any class of, so long or joint venture interest in, any Person provided that:
(a) the Borrowers are in current compliance with and, giving effect to the proposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in compliance with all of the covenants in Section 8 hereof on a pro forma historical combined basis as in each case if the surviving Subsidiary is transaction occurred on the first day of the period of measurement, and a GuarantorCompliance Certificate demonstrating such compliance shall have been provided to the Banks;
(b) after at the Revert Date upon prior written notice to the Administrative Agenttime of such acquisition, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or would result from such acquisitionan Event of Default hereunder;
(iic) not less than five (5) Business Days prior the business to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially be acquired is predominantly in the form same lines of Exhibit F heretobusiness as the Borrowers, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any wayor businesses reasonably related or incidental thereto;
(iiid) all actions have been taken the business to be acquired operates predominantly in the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in continental United States;
(e) all of the assets so to be acquired (excluding any Excluded Assets) pursuant shall be owned by an existing or newly created Subsidiary of the Parent which shall be a Borrower, 100% of the assets and stock of which have been or will be pledged to the Security DocumentsAgent on behalf of the Banks or, free of all Liens other than Permitted Liens;
(iv) in the event case of a stock acquisition, the acquired Person company shall become or shall be merged with a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15that is a Borrower;
(vf) a copy of the purchase agreement and financial projections, together with audited (if available, or otherwise unaudited) financial statements for any Subsidiary to be acquired or created for the preceding two (2) fiscal years shall have been furnished to the Banks;
(g) each acquisition is preceded by the Borrowers' standard due diligence practices, summaries of which shall have been provided to the Banks;
(h) each acquisition of a landfill is preceded by a Phase I environmental assessment, and a copy of such report, together with a reliance letter in substantially the form of Exhibit F, shall have been provided to the Banks;
(i) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vij) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with if such acquisition to is made by a merger, a Borrower shall be the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;surviving entity; and
(viik) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition, the cash consideration to be paid by the Parent in connection with such acquisition or series of related acquisitions (including deferred payments and the aggregate amount of all liabilities assumed) shall not exceed, without the consent of the Majority Banks: (I) $1,000,000 if the Leverage Ratio is equal to or greater than 3.00:1 or if such acquisition includes a landfill, (II) $2,000,000 if the Leverage Ratio is less than 3.00:1 and greater than or equal to 2.50:1, or (III) $3,000,000 if the Leverage Ratio is less than 2.50:1.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Connections Inc/De)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, ; (b) or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long ; and (c) other asset or stock acquisitions of Persons in the same or a similar line of business as in each case the surviving Subsidiary is Borrower (a Guarantor;
(b"Permitted Acquisition") after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
where (i) no Default or Event of Default the Borrower has occurred and is continuing or would result from such acquisition;
(ii) not less than provided the Agent with five (5) Business Days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition, and the Majority Banks have consented in writing, in advance, to the consummation of Borrower or the Subsidiary, as the case may be, consummating such proposed acquisition, ; (ii) the Borrower has provided the Agent with all documents, instruments and agreements to be entered into in connection with the Permitted Acquisition, which documents, instruments and agreements shall have delivered be in form and substance satisfactory to the Administrative Agent; (iii) the business to be acquired would not subject the Agent or any of the Banks to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Credit Agreement and the other Loan Documents; (iv) the business and assets so acquired in such Permitted Acquisition shall be acquired by the Borrower free and clear of all liens (other than Permitted Liens) and all Indebtedness (other than Indebtedness expressly permitted pursuant to ss.9.1 hereof); (v) the Borrower has taken or caused to be taken all necessary actions to grant to the Agent a duly executed certificate substantially first priority perfected lien in all assets and stock to be acquired in connection with such Permitted Acquisition; (vi) the form of Exhibit F hereto, and upon Borrower has demonstrated to the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment satisfaction of the Administrative Agent, based on a pro forma Compliance Certificate, compliance with ss.10 hereof on a Pro Forma Basis both immediately prior to demonstrate that, and after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
Acquisition; (vii) in the case Borrower is the survivor of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
Permitted Acquisition; (viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other no more than Permitted liens, have been discharged in full;
seventy five percent (ix75%) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition total consideration for any Permitted Acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.financed with
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and nor ------------------------ will not the Borrower permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition of all or substantially all the assets of any Person or any operating unit of any Person or stock acquisition, or enter into any LMA Agreement, except:
acquisition other than (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries another Person solely to effect a conversion of the Borrower, so long as in each case the surviving Subsidiary is Borrower to a Guarantor;
corporate entity; (b) after the Revert Date upon acquisition of assets (which may include unimproved real estate) in the ordinary course of business consistent with past practices; (c) other asset or stock acquisitions of Persons in the same or a similar line of business (i.e. the truck stop and stopping center business, services supporting the trucking and travel plaza industry and diesel and gas fueling operations) as the Borrower or its Subsidiary (collectively with the acquisitions permitted by paragraphs (a) and (b) hereof, the "Permitted Acquisitions") where (i) the Borrower has provided the Agent with five (5) Business Days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and the material documents, agreements and instruments to be entered into in connection with such Permitted Acquisition; (ii) the business to be acquired would not subject the Banks or the Agent to regulatory or third party approvals in connection with the exercise of their rights and remedies under this Credit Agreement or any other Loan Documents; (iii) the business and assets so acquired shall be acquired by the Borrower or such Subsidiary free and clear of all liens (other than as permitted by (S)10.2 hereof) and all Indebtedness (other than as permitted by (S)10.1 hereof); (iv) the Borrower or such Subsidiary has taken all necessary actions to grant to the Administrative AgentAgent a first priority perfected lien on all assets and stock to be acquired in connection with such Permitted Acquisition (other than Permitted Liens) and, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent applicable, has provided the Agent with all documents, agreements and information required pursuant to (S)9.13 hereof; (v) the Borrower has demonstrated to the reasonable satisfaction of the Agent, based on a pro forma Compliance --- ----- Certificate, compliance with (S)11 hereof on a Pro Forma Basis immediately prior to and after giving effect to such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
Permitted Acquisition; and (ivi) no Default or Event of Default has occurred and is continuing or would exist as a result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such Permitted Acquisition; (e) the merger or consolidation of one or more of the Subsidiaries of the Borrower with and into the Borrower, or (f) the merger or consolidation of two (2) or more Subsidiaries of the Borrower. In addition, in the event any new Subsidiary is formed as a result of or in connection with any acquisition, all covenants contained herein will be satisfied on such new Subsidiary shall (unless such new Subsidiary is an Immaterial Subsidiary), simultaneously with such acquisition, become a Pro Forma Basis guarantor of the Obligations and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken grant to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders Agent and the Administrative Agent, Banks a first priority perfected security interest in lien on all of its assets. In the assets so acquired event any new Domestic Subsidiary (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(ivan Immaterial Subsidiary) is formed as a result of or in the event of a stock connection with any acquisition, simultaneously therewith, the acquired Person Loan Documents shall become a wholly-owned Subsidiary of the Borrower and shall comply with be amended and/or supplemented as necessary to make the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business Loan Documents applicable to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in Subsidiary. In the case of any acquisition involving domestic radio the Borrower forming or television purchasing such Domestic Subsidiary, such Domestic Subsidiary (other than an Immaterial Subsidiary) shall become a guarantor hereunder, and shall grant to the Agent for the benefit of the Banks a perfected, first priority security interest in its assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts Security Agreement and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionother Security Documents.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any mergermerge with, amalgamation amalgamate or consolidationconsolidate with, or agree to or effect acquire any asset acquisition assets or stock acquisitionof, or enter into any LMA AgreementPerson, except:
(other than the acquisition of assets in the ordinary course of business consistent with past practices, including, without limitation, any Investments expressly permitted pursuant to ss.9.3 hereof) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or ; (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving PROVIDED if only one such Subsidiary is a Guarantor;
, then the Guarantor shall be the survivor of such merger or consolidation; and (bc) after any merger or asset or stock acquisition by the Revert Date upon Borrower or any of its Subsidiaries of Persons in the same or similar line of business as the Borrower (a "Permitted Acquisition") where (1) the Borrower has provided the Administrative Agent with prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and copies of all material documents, agreements and instruments pertaining thereto (including, without limitation, any letters of intent and purchase agreements); (2) the business to be acquired would not subject the Administrative Agent or the Lenders to any additional regulatory or third party approvals in connection with the exercise of its rights and remedies under this Credit Agreement or any other Loan Document; (3) any Indebtedness incurred or assumed in connection with such Permitted Acquisition (including, without limitation, any assumed Indebtedness, any earnout arrangements, seller Indebtedness and non-compete payments) shall have been permitted to be incurred or assumed pursuant to ss.9.1 hereof and shall be on terms acceptable to the Administrative Agent; (4) the aggregate purchase price for all acquisitions in which the Persons so acquired have a negative Target EBITDA shall not exceed $100,000,000 over the life of this Credit Agreement and, in addition, the acquisition negative Target EBITDA on a trailing twelve month basis for the twelve consecutive months most recently ended from the date of determination for all Persons acquired which have a negative Target EBITDA shall not exceed $25,000,000 in -62- the aggregate; (whether pursuant 5) the aggregate amount of the purchase price for all Permitted Acquisitions which is payable in anything other than the Capital Stock (and such Capital Stock shall have no redemption or repurchase rights prior to an Asset Swap or otherwisethe Revolving Credit Loan Maturity Date and shall not have the ability to convert into any form of Indebtedness) of stockthe Borrower shall not exceed $40,000,000 over the life of this Credit Agreement and, or other securities of, or any assets of, any Person, in each case to the extent that at the time of consummating such Permitted Acquisition or immediately after giving effect thereto the sum of all outstanding Revolving Credit Loans plus all Unpaid Reimbursement Obligations plus the Maximum Drawing Amount of all issued and outstanding Letters of Credit is equal to or greater than twenty percent (20%) of the Total Commitment as in effect on such date, then (A) to the extent the aggregate amount of the purchase price for all Permitted Acquisitions made to date has exceeded $100,000,000, such acquisition would involve shall not be permitted and no further acquisitions shall be permitted hereunder and (B) to the extent the aggregate amount of the purchase price for all Permitted Acquisitions made to date has not exceeded $100,000,000, then the aggregate amount of the purchase price for all Permitted Acquisitions shall not exceed $100,000,000 over the life of this Credit Agreement; (6) the board of directors and the shareholders (if required by applicable law), or substantially all the equivalent, of each of the Borrower and the Person to be acquired has approved such merger, consolidation or acquisition; and (7) the Borrower has delivered to the Administrative Agent a radio broadcastingcertificate of the chief financial officer of the Borrower to the effect that (A) the Borrower and its Subsidiaries, television broadcasting or publishing business or business unit thereofon a consolidated and consolidating basis, provided that:
will be solvent upon the consummation of the Permitted Acquisition; and (iB) no Default or Event of Default has occurred and is continuing then exists or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionAcquisition.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices, Investments permitted by Section 10.3 hereof and Capital Expenditures permitted by Section 11.3 hereunder so long as such Capital Expenditures are either (i) made in connection with the expansion in China; or enter into (ii) to acquire Capital Assets which do not represent all or substantially all of the assets of another Person or a division of such Person and are in an aggregate amount which do not exceed for any LMA Agreement, except:
transaction or series of related transaction the aggregate amount of $5,000,000) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the BorrowerBorrower or (c) any other asset or stock acquisitions of Persons in the same or a related line of business as the Borrower or its Subsidiaries (each, so long as in each case a "Permitted Acquisition") where (i) the surviving Subsidiary is a Guarantor;
Borrower has provided the Agent with five (b5) after the Revert Date upon Business Days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and the documents, agreements and instruments to be entered into in connection with such Permitted Acquisition; (ii) without the Administrative prior consent of the Agent, the acquisition (whether pursuant business to an Asset Swap be acquired would not subject the Banks or otherwise) the Agent to regulatory or third party approvals in connection with the exercise of stock, or other securities of, their rights and remedies under this Credit Agreement or any other Revolving Credit Loan Document; (iii) the business and assets ofso acquired shall be acquired by the Borrower or the applicable Subsidiary free and clear of all liens and encumbrances and all Indebtedness (including any assumed or incurred contingent obligations or liabilities), any Personother than as permitted by Section 10.1 or Section 10.2 hereof, shall be incurred or assumed in each case connection with such acquisition; (iv) the Borrower shall have demonstrated to the extent reasonable satisfaction of the Agent, based on a pro forma Compliance Certificate, compliance with Section 11 hereof on a pro forma basis immediately prior to and after giving effect to such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
Permitted Acquisition; (iv) no Default or Event of Default has occurred and is continuing or would exist as a result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such Permitted Acquisition; (vi) the Borrower or the Subsidiary effecting such Permitted 71 -63- Acquisition must be the surviving entity (or, in the case of a Subsidiary effecting the acquisition, all covenants contained herein will be satisfied on the surviving entity becomes a Pro Forma Basis and that Subsidiary of the Borrower’s ability to satisfy its payment obligations hereunder and under ); (vii) the other Loan Documents will aggregate purchase price for all Permitted Acquisitions shall not be impaired in any way;
exceed $25,000,000 during the term of this Credit Agreement; (iiiviii) all actions have been taken the Borrower shall demonstrate to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of Banks that the assets so entity to be acquired has positive consolidated net income; (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(vix) the board of directors and the shareholders (if required by applicable law) the shareholders, or the equivalent thereofequivalent, of the business to be acquired each Person has approved such acquisition;
the Permitted Acquisition; (vix) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary other applicable Person involved in the acquisition has completed such acquisition taken or caused to be taken all necessary actions to the extent reasonably practicable to grant to the Agent a first priority perfected lien (except for Permitted Liens having priority under applicable law) in accordance with the terms of the contracts accounts receivable and agreements entered into by such Person inventory and capital stock or other equity interests to be acquired in connection with such acquisition, ; and (Bxi) certified copies the acquisition is not prohibited by the Subordinated Indenture. In addition, in the event any new Subsidiary is formed as a result of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired or in connection with any acquisition, to the extent such acquisition Subsidiary has the legal power to enter into a Guarantee and Security Agreement, the Loan Documents shall be transferred immediately upon consummation amended and/or supplemented as necessary to make the terms and conditions of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect Loan Documents applicable to such acquisitionSubsidiary as a Guarantor hereunder.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Flextronics International LTD)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, acquisition except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisitionexist after giving effect thereto, the Borrower shall have delivered be permitted to effect the following:
(a) the merger or consolidation of one or more of the Subsidiaries of the Borrower with and into the Borrower or a Guarantor hereunder, provided (i) the Borrower or the Guarantor, as the case may be, has taken or caused to be taken all action necessary to grant to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the Borrower's or such other Guarantor's assets after such merger or consolidation to the same extent as in the assets so acquired (excluding any Excluded Assets) pursuant of parties to the Security Documentsmerger prior thereto; and (ii) prior to consummating such merger or consolidation, free of all Liens other than Permitted Liens;the Agent and the Majority Banks have consented in writing to such merger or consolidation; and
(ivb) asset and/or stock acquisitions of Persons in the event same or a similar line of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of business as the Borrower and shall comply with the terms and conditions set forth in §9.15;
its Subsidiaries (veach a "Permitted Acquisition"), provided (i) the board purchase price for any Permitted Acquisition (or series of directors related acquisitions) does not exceed, in the aggregate, $2,000,000 and the purchase price for all Permitted Acquisitions does not exceed $5,000,000 in the aggregate from December 19, 2002 through the life of this Credit Agreement; and (if required by applicable lawii) prior to consummating any such Permitted Acquisition, (x) the shareholders, or Borrower has demonstrated to the equivalent thereof, reasonable satisfaction of the business Agent that the Person to be acquired has approved such acquisition;
positive EBITDA; (vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viiiy) the Borrower shall have delivered to has provided the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms each of the contracts Banks with a pro forma Compliance Certificate evidencing compliance with all of its financial covenants both immediately before and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such Permitted Acquisition; and (z) the aggregate amount of cash on the Borrower's balance sheet plus availability to request Revolving Credit Loans hereunder is not less than $10,000,000 after giving effect to any such Permitted Acquisition. In the event any new Domestic Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Domestic Subsidiary shall, immediately upon its creation or acquisition, execute and deliver to the Agent for the benefit of the Agent and the Banks, an Instrument of Adherence in substantially the form of Exhibit H hereto (an "Instrument of Adherence") and the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Domestic Subsidiary. Such Domestic Subsidiary shall become a Guarantor hereunder and shall become party to the Guaranty and the Security Agreement and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Domestic Subsidiary's assets to the extent required by the Loan Documents. The Borrower and its Subsidiaries shall, immediately upon the creation or acquisition of such Domestic Subsidiary, pledge all of such Domestic Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks. In addition, to the extent any Foreign Subsidiary is acquired or created after the Closing Date which the Agent in its sole and absolute discretion determines to be either a material Subsidiary or is a Subsidiary which the Agent reasonably believes has significant value, the Borrower and its Subsidiaries shall, immediately upon the request of the Agent, pledge 65% of such Foreign Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks.
Appears in 1 contract
Mergers and Acquisitions. The Each of Holdings and the Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of Holdings with and into the Borrower, so long as in each case the surviving Subsidiary Borrower is a Guarantor;
the survivor of such merger or consolidation, (b) after the Revert Date upon prior written notice to merger or consolidation of two or more Subsidiaries of the Administrative Agent, the acquisition Borrower or (whether pursuant to an Asset Swap or otherwisec) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) so long as no Default or Event of Default has occurred and is continuing or would result from exist after giving effect thereto, the acquisition by the Borrower of' the assets or stock of Persons in the same or a similar line of business as the Borrower and its Subsidiaries (each a "Permitted Acquisition") where (i) the Borrower has provided the Agent with thirty (30) days prior written notice of such acquisition;
Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition and copies of all acquisition documents in connection therewith; (ii) the business to be acquired would not less than five subject the Agent or the Banks to regulatory or third party approvals in connection with the exercise of their rights and remedies under this Credit Agreement or any other Loan Document; (5iii) Business Days prior no contingent liabilities or liabilities will be incurred or assumed in connection with such Permitted Acquisition, and any Indebtedness incurred or assumed in connection with such Permitted Acquisition (1) shall have been permitted to be incurred or assumed pursuant to §10.1 hereof; and (2) shall contain terms and conditions (including subordination provisions) reasonably acceptable to the Agent and the Banks in all respects; (iv) the Borrower has provided the Agent with such other information as was reasonably requested by the Agent (v) after the consummation of such proposed acquisitionthe Permitted Acquisition, the Borrower shall have delivered own 100% of -the capital stock of the Person to be acquired; (vi) the Borrower shall take, or shall cause to be taken, all necessary action to grant to the Administrative Agent a duly executed certificate substantially first priority perfected lien in all assets and stock acquired in connection with such Permitted Acquisition, with such exceptions as the form of Exhibit F hereto, and upon Agent may approve; (vii) the Administrative Agent’s request, such financial projections as shall be necessary, in Borrower has demonstrated to the reasonable judgment satisfaction of the Administrative Agent, based on a pro forma Compliance Certificate, compliance with §11 immediately prior to demonstrate that, and immediately after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that Permitted Acquisition; (viii) the consideration paid to the sellers in such Permitted Acquisition is solely in the form of the capital stock of the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
; (iiiix) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and the shareholders (if required by applicable law) the shareholders), or the equivalent thereofequivalent, of each of the business Borrower and the Person to be acquired has approved such acquisition;
merger, consolidation or acquisition and such Permitted Acquisition is otherwise considered "friendly"; (vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viiix) the Borrower shall have demonstrated to the satisfaction of the Agent that the Consolidated Net Income and Consolidated Net Operating Income of the Person to be acquired for the most recently ended twelve (12) month period is positive; and (xi) the Borrower has delivered to the Administrative Agent evidence reasonably satisfactory a certificate of the chief financial officer of the Borrower to the Administrative Agent effect that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix1) the Borrower shall have delivered to will be solvent upon the Administrative Agent consummation of the Permitted Acquisition; (A2) evidence satisfactory to the Administrative Agent that pro forma Compliance Certificate fairly presents the financial condition of the Borrower or such Subsidiary has completed such acquisition in accordance with the terms and its Subsidiaries as of the contracts date thereof and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such Permitted Acquisition; and (3) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition. In the event any new Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Subsidiary shall, immediately upon its creation or acquisition, execute and deliver to the Agent for the benefit of the Agent and the Banks, an Instrument of Adherence in substantially the form of Exhibit E hereto (an "Instrument of Adherence") and the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Domestic Subsidiary. Such Subsidiary shall become a Guarantor hereunder and shall become party to the Guaranty and the Security Agreement and shall execute and deliver to the Agent any and all other agreements, documents, instruments and financing statements necessary to grant to the Agent a first priority perfected lien in such Subsidiary's assets. The Borrower and its Subsidiaries shall, immediately upon the creation or acquisition of such Subsidiary, pledge all of such Subsidiary's capital stock to the Agent for the benefit of the Agent and the Banks.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Fargo Electronics Inc)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except, so long as no Default of Event of Default then exists or enter into any LMA Agreementwould occur as a result thereof, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or ; (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving provided if only one such Subsidiary is a Guarantor;
, then the Guarantor shall be the survivor of such merger or consolidation; and (bc) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap by the Borrower through any merger or otherwise) of stock, asset or other securities of, stock acquisition by the Borrower or any assets of, any Personof its Subsidiaries of Persons (or, in each the case to the extent such acquisition would involve all or substantially all of an asset acquisition, assets of a radio broadcasting, television broadcasting Person) in the same or publishing a similar line of business or business unit thereof, provided that:as the Borrower (a "Permitted Acquisition") so long as
(i) no Default or Event the Borrower has provided the Administrative Agent with prior written notice of Default has occurred and is continuing or would result from such acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of each of the business Borrower or the applicable Subsidiary and of the Person to be acquired has approved such merger, consolidation or acquisition;
(viiii) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person any Indebtedness incurred or assumed in connection with such acquisition to the extent permitted Permitted Acquisition (including, without limitation, any assumed Indebtedness, earnout arrangements, seller Indebtedness and non-compete payments) shall have been assigned permitted to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, be incurred or assumed pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent(S)9.1;
(viiiv) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
not less than five (viii5) the Borrower shall have delivered days prior to the Administrative Agent evidence reasonably satisfactory to consummation of the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquiredproposed acquisition, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance a Compliance Certificate prepared on a Pro Forma Basis demonstrating compliance with the terms of the contracts and agreements entered into by such Person financial covenants set forth in connection with such acquisition, ss.10 hereof and (B) certified copies a certificate from the chief financial officer of all such documents shall have been delivered the Borrower to the Administrative Agenteffect that (1) the Borrower and its Subsidiaries, on a consolidated and consolidating basis, will be solvent both before and after consummating the Permitted Acquisition and (2) no Default or Event of Default then exists or would result after giving effect to the Permitted Acquisition;
(xv) all FCC Licenses in the event of a stock acquisition, the Person so acquired shall become a wholly owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in (S)8.15 hereof and, in the event of a merger, to the extent one party to the merger is the Borrower, then the Borrower shall be the survivor of such merger, and to the extent a Subsidiary of the Borrower is a party to the merger, the survivor of such merger shall become a Subsidiary of the Borrower;
(vi) the business to be acquired would not subject the Administrative Agent or any Lender to regulatory or third party approvals in connection with the exercise of any of its rights and remedies under this Credit Agreement or any other Loan Document;
(vii) no contingent obligations or liabilities will be incurred or assumed in connection with such acquisition which could reasonably be expected to have a material adverse effect on the business condition (financial or otherwise), operations, performance or properties of the Borrowers, individually or the Borrower or its Subsidiaries, taken as a whole;
(viii) the aggregate amount of the purchase price for any single acquisition or series of related acquisitions shall not exceed $4,000,000 without the Administrative Agent's and the Required Lenders' prior written consent;
(ix) the Borrower shall have demonstrated to the satisfaction of the Administrative Agent, not less than three (3) Business Days prior to the consummation of such acquisition, that the Person to be transferred immediately upon acquired has a positive EBITDA on a trailing twelve month basis for the twelve consecutive months most recently ended prior to the consummation of such acquisition (with any adjustments to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered EBITDA to be approved by the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionAgent).
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and nor will not the Borrower permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except so long as no Default or Event of Default has occurred or is continuing, or enter into any LMA Agreement, except:would exist after giving effect thereto,
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;; and
(b) after other asset or stock acquisitions of Persons predominantly in the Revert business of property and casualty insurance or other businesses already conducted by the Borrower on the Closing Date upon (a “Permitted Acquisition”) where (i) the Borrower has provided the Administrative Agent with five (5) Business Days prior written notice of such Permitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition; (ii) such Permitted Acquisition is non-hostile in nature; (iii) the Borrower or a Subsidiary of the Borrower would be the surviving entity in such Permitted Acquisition (iv) the business to be acquired operates within the United States; (v) the business and assets to be acquired in such Permitted Acquisition shall be acquired by the Borrower or such Subsidiary free and clear of all liens (other than Permitted Liens) and all Indebtedness (other than Permitted Indebtedness); (vi) no contingent obligations or liabilities will be incurred or assumed in connection with such Permitted Acquisition which would reasonably be expected to have a Material Adverse Effect; (vii) the Borrower has provided the Administrative Agent with such other information as has been reasonably requested by the Administrative Agent; (viii) the Borrower has taken or caused to be taken all necessary actions to grant to the Administrative Agent a first priority perfected lien in all assets and stock to be acquired in connection with such Permitted Acquisition subject to applicable law and provided that any acquired Person which would be an Insurance Subsidiary shall not be required to xxxxx x Xxxx on any assets other than Non-Admitted Assets; (ix) the Borrower has demonstrated to the reasonable satisfaction of the Administrative Agent, based on a pro forma Compliance Certificate, compliance with §9 on a pro forma basis immediately prior to and after giving effect to such Permitted Acquisition; (x) the acquisition aggregate purchase price (whether pursuant to an Asset Swap or otherwiseincluding assumed debt and seller paper) of stockfor Permitted Acquisitions does not exceed $20,000,000 for any particular Permitted Acquisition individually, or other securities of, or any assets of, any Person, $60,000,000 in each case the aggregate during the term of this Credit Agreement and (xi) the Borrower has delivered to the extent Administrative Agent a certificate of the chief financial officer of the Borrower to the effect that (1) the Borrower will be solvent upon the consummation of the Permitted Acquisition; (2) the pro forma Compliance Certificate fairly presents the financial condition of the Borrower and its Subsidiaries as of the date thereof and after giving effect to such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
Permitted Acquisition and (i3) no Default or Event of Default has occurred and is continuing then exists or would result from such acquisition;
(ii) not less than five (5) Business Days prior after giving effect to the consummation Permitted Acquisition. In the event any new Subsidiary is formed as a result of such proposed acquisitionor in connection with any Permitted Acquisition, simultaneously therewith, the Loan Documents shall be amended and/or supplemented as necessary to make the terms and conditions of the Loan Documents applicable to such Subsidiary. In the case of the Borrower forming or purchasing such Subsidiary, such Subsidiary (other than any Insurance Subsidiary) shall have delivered become a Subsidiary Guarantor hereunder, and shall grant to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agenta perfected, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts Security Agreement and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered the other Security Documents. Notwithstanding anything herein to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation contrary, no Subsidiary of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered be required to become a Subsidiary Guarantor hereunder unless and until the Administrative Agent Borrower’s aggregate Investment (including, without limitation any consideration in respect of the purchase price by the Borrower) in such Subsidiary shall exceed $35,000,000 at any time (provided, that for purposes of this Section 8.5.1, the outstanding amount of an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit AgreementInvestment shall be calculated net of all amounts received by the Borrower from such Subsidiary (including by way of dividend, as applicable, after giving effect to such acquisitioninterest or otherwise)).
Appears in 1 contract
Mergers and Acquisitions. The Borrower Obligors will not, and will not permit any of its their Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except acquisitions by any Borrower of other Persons which thereby become Subsidiaries, or enter into any LMA Agreementdivisions or business segments of such other Persons (whether by way of purchase of assets or capital stock, exceptmerger or otherwise) (each a "Permitted Acquisition"), provided, that:
(a) upon prior written notice to any asset or stock acquisition is in the Administrative Agent, the merger same line of business as such Borrower or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantorrelated business;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred shall exist at the time of, and is continuing none shall exist after giving effect to, such merger, consolidation or would result from such acquisition;
(iic) not less than five (5) Business Days prior such Borrower has delivered to the consummation Agent fifteen (15) days' prior written notice of such acquisition, which notice shall provide the Agent with a reasonably detailed description of the proposed acquisition, including, without limitation, historical financial statements, appraisals, any analysis performed by consultants and other information reasonably requested by the Agent;
(d) subject to Permitted Liens, such Borrower or its Subsidiary, as the case may be, has taken all necessary action to grant to the Agent a perfected first priority security interest in all assets acquired pursuant to any such acquisition, whether by stock or asset acquisition;
(e) no portion of the Revolving Credit Loans will be used to purchase or carry margin securities or margin stock as defined in Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224 (except in a so-called "going private" transaction effected in compliance with such Regulations, in which such securities or stock, immediately upon such purchase, no longer constitute margin securities or margin stock, such that the Revolving Credit Loans will not at any time be secured directly or indirectly, by any margin securities or margin stock);
(f) the business to be acquired would not subject the Agent or the Banks to regulatory or third party approvals in connection with the exercise of any of their rights and remedies under this Credit Agreement or any other Loan Document;
(g) the business and assets so acquired shall be acquired free and clear of all liens and encumbrances (other than as permitted hereunder) and shall be located in the United States;
(h) no contingent obligations or liabilities will be incurred or assumed in connection with such acquisition which could reasonably be expected to have a material adverse effect on the business condition (financial or otherwise), operations, performance or properties of any of the Obligors or their Subsidiaries taken as a whole;
(i) the Borrowers have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment pro forma Compliance Certificate evidencing pro forma compliance with each of the Administrative Agentcovenants in ss.11 of this Credit Agreement and a certificate of the chief financial officer of the Borrowers to the effect that (A) each of the Borrowers will be solvent upon consummation of such acquisition and, to demonstrate that, (B) the pro forma Compliance Certificate fairly presents the financial condition of the Borrowers and their Subsidiaries as of the most recently completed fiscal quarter end and after giving effect to such acquisition, all covenants contained herein will be satisfied acquisition on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;pro forma basis; and
(iiij) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business cash consideration to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into paid by such Person Borrower in connection with such acquisition to or series of related acquisitions occurring within the extent permitted have been assigned to most recently completed period of four consecutive fiscal quarters (including cash deferred payments, contingent or otherwise, and the Administrative Agent as security for the irrevocable payment and performance in full aggregate amount of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(viiall assumed Indebtedness) shall not exceed $3,000,000 in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionaggregate.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Morgan Group Inc)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices or enter into any LMA Agreement, the acquisition of shares of common stock of the Borrower) except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger merger, amalgamation or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower; PROVIDED that if any of the parties to such merger, so long as in each case the surviving Subsidiary amalgamation or consolidation is a Guarantor;, the survivor of such merger, amalgamation or consolidation shall be a Guarantor or the Borrower; or
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, stock or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided PROVIDED that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to such Person is in the consummation same line of such proposed acquisition, business as the Borrower shall have delivered to the Administrative Agent and its Subsidiaries or a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any wayrelated business;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(viiv) all of the Borrower’s and/or its Subsidiaries’ not less than ten (as the case may be10) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition days prior to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(bwritten notice of such acquisition, which notice shall provide the Administrative Agent with a reasonably detailed description of such acquisition;
(v) not less than ten (10) days prior to the consummation of the proposed acquisition, the Borrower shall have delivered (if applicable) to the Administrative Agent evidence satisfactory to the Administrative Agent of the calculation of EBITDA for the Person to be acquired for the immediately preceding twelve (12) month period prior to the proposed acquisition date;
(vi) not less than ten (10) days prior to the consummation of the proposed acquisition, the Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating PRO FORMA compliance with the financial covenants set forth in Section 10;
(vii) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary (except for director qualifying shares) of the Borrower and an updated Schedule 8.21 to this Credit Agreement, the Borrower and the acquired Person shall comply with the terms and conditions of Section 8.11 if such Person qualifies as applicable, a Significant Subsidiary hereunder;
(viii) after giving effect to such acquisition, the Borrower shall be able to borrow at a minimum an additional $25,000,000 of Revolving Credit Loans; and
(ix) the sum of (i) the aggregate purchase price for all acquisitions consummated pursuant to this Section 9.5.1 PLUS (ii) the amount of Investments made by the Borrower or any of its Subsidiaries in Subsidiaries of thE Borrower which are not Guarantors pursuant to Section 9.3(i) shall not exceed $150,000,000; PROVIDED, HOWEVER, no such restrictions shall apply if (i) in the event of a stock acquisition, the acquired Person (A) becomes a Guarantor in accordance with Section 8.11 or is designated as a Guarantor by the Borrower and (B) has positive EBITDA for thE immediately preceding twelve (12) month period prior to the acquisition date or (ii) in the event of an asset acquisition, (A) the assets so acquired shall have generated positive EBITDA during the twelve (12) month period immediately preceding the acquisition date or (B) if such assets did not generate EBITDA (positive or negative) during such twelve (12) month period immediately preceding the acquisition date, the Borrower projects such assets would add positive EBITDA for the Borrower for the twelve (12) month period immediately following the acquisition date.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not(a) Except as provided in paragraph (b) below, no Obligor will, and each Obligor will not permit any procure that no member of its Subsidiaries tothe Group will, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreementamalgamation, except:
(a) upon prior written notice to the Administrative Agentdemerger, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrowerreconstruction, nor make any acquisitions of, or the merger investments in any business or consolidation of two (2) any shares or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;other securities.
(b) after Paragraph (a) does not apply to:
(i) the Revert Date upon prior written notice acquisition of any Product or other stock in trade made in the ordinary course of trade or any Permitted Joint Venture; or
(ii) the acquisition of Shares in Joint Ventures to the Administrative Agentextent permitted by Clause 19.27 (Joint Ventures); or
(iii) any other acquisition or investments not exceeding E50,000,000 per annum in aggregate (or equivalent in other currencies) prior to the Facility Discharge Date; or
(iv) an amalgamation, the demerger, merger or reconstruction, acquisition (whether pursuant to an Asset Swap or otherwise) of stock, investment in any business or any shares or other securities ofinvolving only members of the Group which are not Obligors carried out on a solvent basis (including, without limitation, for the purpose of a tax reorganisation or tax restructuring, recapitalisation of subsidiaries, or any assets of, any Person, in each case to for the extent such acquisition would involve all or substantially all simplification of a radio broadcasting, television broadcasting or publishing business or business unit thereofthe Group structure chart, provided that:
(iA) no Default or Event of Default has occurred and is continuing or would result from the Company supplies the Facility Agent as soon as possible prior to such acquisition;reorganisation with reasonable details thereof; and
(iiB) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in if any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) created pursuant to the Security Documents, free of all Liens other than Permitted Liens;
Documents has been or is likely to be (iv) in the event opinion of a stock acquisitionthe Majority Lenders) affected by such reorganisation, the acquired Person Company shall become a wholly-owned Subsidiary ensure that the relevant member of the Borrower Group shall execute and shall comply with deliver to the Security Agent such additional Security Documents as the Majority Lenders may reasonably require on substantially the same terms and conditions set forth in §9.15;as the Security Documents charging the assets, subject of the affected security; or
(v) an amalgamation, demerger, merger or reconstruction, acquisition or investment in any business or any shares or other securities involving any member of the board Group (other than an Obligor except Games permitted under this Agreement) carried out on a solvent basis for the purposes of directors and facilitating a disposal permitted by Clause 19.14 (if required by applicable lawDisposals) which could not reasonably be expected to have a Material Adverse Effect or to jeopardise the shareholders, guarantees given to the Lenders under the Finance Documents or the equivalent thereof, of Lenders' security under the business to be acquired has approved such acquisition;Security Documents; or
(vi) all any such operation or transaction entered into with the prior written consent of the Borrower’s and/or its Subsidiaries’ Majority Lenders (as and, for the case avoidance of doubt, such consent may be) rights and interests inbe withheld, to and under each contract and agreement entered into by without limitation, if the Majority Lenders are of the opinion that any such Person in connection with such acquisition amalgamation, merger, de-merger, consolidation, reconstruction or transfer could jeopardise the guarantees given to the extent permitted have been assigned to Lenders under the Administrative Agent as Finance Documents or the Lenders' security for under the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;Security Documents); or
(vii) the exercise of put options listed as Contingent Financial Liabilities or other put options where the exercise price is not payable in cash in each case in respect of put options existing at the case date of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;this Agreement; or
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent acquisition by Cegetel of that all liens and encumbrances with respect to the properties and assets so acquired, other part of Telecom Developpement SA France not presently beneficially owned by Cegetel for an aggregate total consideration of not more than Permitted liens, have been discharged in full;E800,000,000 (including E300,000,000 of acquired debt); or
(ix) investments in VUE Borrower Co. by the Company, the amount of which investments, when aggregated with loans outstanding and permitted to be made to VUE Borrower shall have delivered Co. by the Company pursuant to the Administrative Agent Clause 19.19 does not exceed at any time an aggregate amount of U.S.$ 200,000,000 (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition equivalent in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;other currencies); or
(x) all FCC Licenses acquired any amalgamation, demerger, merger, reconstruction, acquisition or investment in connection with such acquisition shall be transferred immediately upon consummation a Relevant Intra Group Disposals and in relation to the VE separation agreement entered into on 20th December, 2002 as disclosed to the Facility Agent prior to the date of such acquisition to a License Subsidiary;this Agreement; or
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered acquisition by the Company of 16 per cent. of the share capital of Maroc Telecom pursuant to the Administrative Agent exercise by the Kingdom of Maroc pursuant to the put option set out in the Protocole d'Accord between the Kingdom of Maroc and the Company dated 4th March 2002; or
(xii) investments in Shanghai Universal Theme Park Co. Ltd up to an updated Schedule 8.3(baggregate amount of U.S.$217,000,000 (or equivalent in other currencies) and an updated Schedule 8.21 by any member of the VUE Group; or
(xiii) any Games Reorganisation; or
(xiv) investments made for non-cash consideration, subject always to Clause 19.26, , provided that such investments do not expose any member of the Group to any liability, actual or contingent, for Financial Indebtedness; or
(xv) any investment expressly permitted pursuant to this Credit Agreement, as applicable, after giving effect to such acquisition.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and will ------------------------ not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisitionequity acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except, so long as no Default or Event of Default has occurred or is continuing, or enter into any LMA Agreement, except:would exist after giving effect thereto,
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, Borrower or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries any other Subsidiary of the Borrower, so long as provided, the survivor of such merger may not be an Unrestricted Subsidiary -------- unless the merger involves only Unrestricted Subsidiaries and provided, -------- further, the Borrower has taken or caused to be taken all action necessary ------- to grant to the Agent a first perfected priority security interest in each case all of the surviving Subsidiary is a GuarantorBorrower's or such Restricted Subsidiary's Collateral after such merger;
(b) after the Revert Date upon prior written notice to Acquisitions;
(c) other asset or stock acquisitions of Persons in the Administrative Agent, same or a similar line of business as the acquisition Borrower (whether pursuant to an Asset Swap or otherwisethe "Permitted Acquisition") of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
where (i) no Default or Event of Default the Borrower has occurred and is continuing or would result from such acquisition;
(ii) not less than provided the Agent with five (5) Business Days prior to the consummation written notice of such proposed acquisitionPermitted Acquisition, the Borrower which notice shall have delivered to the Administrative Agent include a duly executed certificate substantially in the form reasonably detailed description of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
Permitted Acquisition; (iiiii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of would not subject the Borrower’s and/or its Subsidiaries’ (as Agent or the case may be) rights and interests in, Banks to and under each contract and agreement entered into by such Person regulatory or third party approvals in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment exercise of its rights and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
remedies under this Credit Agreement or any other Loan Document; (vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viiiiii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties business and assets so acquired, acquired in such Permitted Acquisition shall be acquired by the Borrower free and clear of all liens (other than Permitted liens, have been discharged in full;
Acquisition Liens) and all Indebtedness (ixother than Permitted Acquisition Indebtedness); (iv) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower no contingent obligations or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person liabilities will be incurred or assumed in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.with
Appears in 1 contract
Samples: Revolving Credit and Acquisition Loan Agreement (Jackson Products Inc)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.
(c) other media-related acquisitions not included in clause (b) above, provided that (i) so long as the Total Leverage Ratio calculated on a Pro Forma Basis after giving effect to such acquisition is greater than 6.00:1.00, the aggregate purchase price for all such acquisitions, whether payable in cash or otherwise, shall not exceed $100,000,000, and (ii) each of the conditions set forth in clause (b)(i) through (xi) above shall have been satisfied;
(d) the Borrower or any of its Subsidiaries may enter into LMA Agreements provided that (i) at the time the Borrower or such Subsidiary enters into an LMA Agreement, no Default or Event of Default has occurred and is then continuing or could reasonably be expected to result as a consequence of entering into such LMA Agreement, (ii) if (A) the Borrower or any of its Subsidiaries has acquired an option to acquire a Station or is otherwise obligated to purchase a Station in connection with such LMA Agreement or in a related transaction or (B) such LMA Agreement is material as determined in the reasonable judgment of the Administrative Agent after consultation with the Borrower, then, in each case, all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each such LMA Agreement shall have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance satisfactory to Administrative Agent, (iii) if such LMA Agreement contemplates a Station acquisition, such Station acquisition must satisfy the provisions of clause (b) above; provided that, if such LMA Agreement grants the Borrower or such Subsidiary an option to purchase a Station, the relevant date for determining whether the provisions of clause (b) above have been satisfied with respect to such acquisition shall be a date not earlier than five (5) Business Days prior to the date on which the Borrower or such Subsidiary proposes to exercise such option, with the intent that this clause (iii) shall not operate to prevent the Borrower or such Subsidiary from entering into such LMA Agreement if all of the other conditions of this clause (d) have been satisfied, save that the provisions of clause (b) cannot be satisfied with respect to such optional acquisition on the date of the Borrower’s or such Subsidiary’s entry into such LMA Agreement, (iv) if such LMA Agreement contemplates an Asset Sale or Asset Swap, such Asset Sale or Asset Swap is otherwise permitted pursuant to §10.5 hereof, and (v) the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto; and
(e) any Investments permitted under §10.3.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Mergers and Acquisitions. The Borrower (a) No Obligor shall enter into any amalgamation, demerger, merger or corporate reconstruction (excluding any Approved Reorganisation or any Disposal permitted under paragraph (b) of Clause 22.4 (Disposals) and save as permitted under Clause 23.7 (Insolvency Proceedings)) save where the Facility Agent is satisfied, acting reasonably, that ABB or the relevant Obligor’s obligations under the Finance Documents will notcontinue to be ABB’s or the relevant Obligor’s legal, valid, binding and will not permit (subject to the Reservations) enforceable obligations.
(b) No Obligor shall (and ABB shall ensure that no Group Company shall) acquire any of its Subsidiaries tocompany, become a party to any merger, amalgamation business or consolidation, undertaking or agree to or effect any asset acquisition or stock acquisition, form or enter into any LMA Agreementjoint venture, except:partnership, consortium or other like arrangement (any such joint venture, partnership, consortium or other like arrangement being hereafter a “JV”).
(ac) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
Paragraph (b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided thatabove does not apply:
(i) no Default prior to the Trigger Date, to any acquisition of an undertaking (by way of acquisition of shares or Event otherwise) or to any JV:
(A) that carries on a business currently conducted by a member of Default has occurred the Group or which is reasonably ancillary to any such business; and
(1) where the aggregate consideration (or, in the case of a JV, investment by Group Companies) is not in excess of $3,500,000; or
(2) where the aggregate consideration (or, in the case of a JV, investment by Group Companies), when taken with all other such acquisitions or investments in the same financial year (other than those in (i)(B)(1) above), is not in excess of $750,000,000 (provided that all or part of such amount may be carried forward from any applicable financial year to the following financial year where a transaction signs in the applicable financial year and is continuing closes in the first 3 months of the following financial year); and
(C) where two authorised signatories of ABB have certified in writing to the Lenders that on a historic basis for the most recent Quarter Date prior to such acquisition or other transaction and looking forward to each Quarter Date for the term of the Facility on a pro forma basis, such acquisition would result from not give rise to a breach of Clause 21.2 (Financial condition), Provided that any acquisition or other transaction that would not be permitted because of the limitation set out in paragraph (B) above may be made if details thereof have been provided to the Lenders and the Majority Lenders have not objected in writing to such acquisitionacquisition or other transaction within 30 Business Days;
(ii) not less than five (5) Business Days at any time after the Trigger Date, in circumstances where two authorised signatories of ABB have certified in writing to the Lenders that on a historic basis for the most recent Quarter Date prior to such acquisition or other transaction and looking forward for each Date falling on 30 June and 31 December during the consummation term of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent Facility on a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s requestpro forma basis, such financial projections as shall be necessary, in the reasonable judgment acquisition or other transaction would not give rise to a breach of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any wayClause 21.2 (Financial Condition);
(iii) all actions have been taken to a solvent reorganisation not affecting the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected Obligors or any security interest in all of the assets so acquired (excluding any Excluded Assets) contemplated or granted pursuant to the Security Documents, free of all Liens other than Permitted LiensAgreed Form Pledges;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement JVs entered into by Group Companies provided the formation of such Person in connection with such acquisition JV is pursuant to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full core business of the Obligations, pursuant to Collateral Assignments of Contracts in form Group and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance consistent with the terms ordinary business practices of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to Group as at the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitiondate hereof.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, acquisition except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, exist after giving effect to such acquisition, all covenants contained herein will be satisfied on thereto and with the prior written consent of the Agent and Majority Banks:
(a) the merger or consolidation of one or more of the Subsidiaries of the Borrower with and into the Borrower or a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations Guarantor hereunder and under provided the other Loan Documents will not Borrower or the Guarantor, as the case may be, has taken or caused to be impaired in any way;
(iii) taken all actions have been taken action necessary to grant to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the Borrower's or such other Guarantor's assets after such merger or consolidation to the same extent as in the assets so acquired (excluding any Excluded Assets) pursuant of parties to the Security Documents, free of all Liens other than Permitted Liens;merger prior thereto; and
(ivb) asset or stock acquisitions of Persons in the event same or a similar line of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of business as the Borrower and its Subsidiaries (each a "Permitted Acquisition") as permitted in §11.5. In the event any new Domestic Subsidiary is formed or acquired as a result of or in connection with any acquisition, such new Domestic Subsidiary shall, immediately upon its creation or acquisition, execute and deliver to the Agent for the benefit of the Agent and the Banks, an Instrument of Adherence in substantially the form of Exhibit H hereto (an "Instrument of Adherence") and the Loan Documents shall comply with be amended and/or supplemented as necessary to make the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business Loan Documents applicable to be acquired has approved such acquisition;
(vi) Domestic Subsidiary. Such Domestic Subsidiary shall become a Guarantor hereunder and shall become party to the Guaranty and the Security Agreement and shall execute and deliver to the Agent any and all of other agreements, documents, instruments and financing statements necessary to grant to the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by Agent a first priority perfected lien in such Person in connection with such acquisition Domestic Subsidiary's assets to the extent permitted have been assigned required by the Loan Documents. The Borrower and its Subsidiaries shall, immediately upon the creation or acquisition of such Domestic Subsidiary, pledge all of such Domestic Subsidiary's capital stock to the Administrative Agent as security for the irrevocable payment and performance in full benefit of the ObligationsAgent and the Banks. In addition, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative extent any Foreign Subsidiary is acquired or created after the Closing Date which the Agent evidence in its sole and absolute discretion determines to be either a material Subsidiary or is a Subsidiary which the Agent reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary believes has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisitionsignificant value, the Borrower shall have delivered and its Subsidiaries shall, immediately upon the request of the Agent, pledge 65% of such Foreign Subsidiary's capital stock to the Administrative Agent an updated Schedule 8.3(b) for the benefit of the Agent and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionthe Banks.
Appears in 1 contract
Mergers and Acquisitions. The Borrower None of the Borrowers will, nor will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except the merger or consolidation of, or enter asset or stock acquisitions between existing Subsidiaries, mergers of existing Subsidiaries with and into any LMA Agreementof the Borrowers, exceptand asset or stock acquisitions by any of the Borrowers of the stock or assets of existing Subsidiaries, and except as otherwise provided in this §9.5.
1. The Borrowers may purchase or otherwise acquire all or substantially all of the assets or stock or other equity interests of any other Person provided that:
(a) upon prior written notice the Borrowers are in current compliance with and, giving effect to the Administrative Agentproposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in compliance with all of the covenants in §9 hereof as if the transaction occurred on the first day of the period of measurement; provided, that, to the extent such acquisition will be included as an Acquired Business, the merger or consolidation of one (1) or more Administrative Agent shall have received an Officer’s Certificate certifying compliance with §§10.1-10.3 on a pro forma historical combined basis as if the transaction occurred on the first day of the Operating Subsidiaries period of measurement and the Borrower with and into related documentation showing the Borrower, or the merger or consolidation of two estimated calculations (2subject to any adjustments) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as made in each case the surviving Subsidiary is a Guarantordetermination thereof;
(b) after at the Revert Date upon prior written notice to the Administrative Agenttime of such acquisition, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or would result from such acquisitionan Event of Default hereunder;
(iic) the business to be acquired is similar to the business conducted by BGI, or businesses reasonably related or incidental thereto;
(d) not less later than five seven (57) Business Days days prior to the consummation proposed acquisition date, notice of such any proposed acquisitionacquisition with an aggregate consideration (including assumption of indebtedness) of more than $30,000,000, the Borrower shall have delivered to together with all information reasonably requested by the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect with respect to such acquisitionacquisition (including without limitation, all covenants contained herein will be satisfied on a Pro Forma Basis historical financial statements and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iiidue diligence summaries) all actions shall have been taken to the reasonable satisfaction of the Administrative Agent to provide furnished to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(ve) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vif) all if such acquisition is made by a merger, BGI (or a wholly-owned Subsidiary of BGI) shall be the Borrower’s and/or its Subsidiaries’ surviving entity; and
(as g) the case may be) rights and interests in, total consideration to and under each contract and agreement entered into by such Person be paid in connection with any acquisition or series of related acquisitions, in the form of cash and assumption of debt with respect to any such acquisition to or series of related acquisitions, shall not exceed $200,000,000 without the extent permitted have been assigned to consent of the Administrative Agent as security for and the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionRequired Lenders.
Appears in 1 contract
Samples: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices, or enter into any LMA Agreementof Investments permitted under Section 11.3, and other than transfers of assets among the Borrower and the Guarantors) except:, so long as no Default or Event of Default has occurred and is continuing or would result after giving effect thereto,
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;,
(b) after acquisitions and development of new Stores in compliance with Section 11.5, and
(c) other asset or stock acquisitions of Persons in the Revert Date upon prior written notice to same or a similar line of business as the Administrative Agent, Borrower (the acquisition (whether pursuant to an Asset Swap or otherwise"Permitted Acquisition") of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
where (i) no Default or Event of Default the Borrower has occurred and is continuing or would result from such acquisition;
(ii) not less than provided the Administrative Agent with five (5) Business Days prior to the consummation written notice of such proposed acquisitionPermitted Acquisition, the Borrower which notice shall have delivered to the Administrative Agent include a duly executed certificate substantially in the form reasonably detailed description of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
Permitted Acquisition; (iiiii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of would not subject the Borrower’s and/or its Subsidiaries’ (as Administrative Agent or the case may be) rights and interests in, Lenders to and under each contract and agreement entered into by such Person regulatory or third party approvals in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment exercise of its rights and performance in full remedies under this Credit Agreement or any other Loan Document (other than approvals of the Obligationstype described in Schedule 8.1.2 hereof); (iii) the business and assets so acquired in such Permitted Acquisition shall be acquired by the Borrower or a Guarantor free and clear of all liens (other than Permitted Liens) and all Indebtedness (other than Indebtedness permitted by Section 10.1 hereof in an aggregate amount not to exceed, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) except in the case of any acquisition involving domestic radio or television assetsIndebtedness permitted by Section 10.1(b), the FCC shall have issued orders approving or consenting to such acquisition;
(viiif) and (g), $1,000,000); (iv) the Borrower shall have delivered provided evidence that the business to be so acquired has positive Consolidated EBITDA for the period of twelve months most recently ended (for the purposes of which, all references to the Administrative Agent evidence reasonably satisfactory to Borrower and its Subsidiaries used in the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged applicable definitions set forth in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition Section 1.1 shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.deemed to
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Buca Inc /Mn)
Mergers and Acquisitions. The Borrower Borrowers will not, and will ------------------------ not permit any of its their Non-Excluded Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Non- Excluded Subsidiaries of the such Borrower with and into the Borrower, or ;
(b) the merger or consolidation of two a Non-Excluded Subsidiary with one or more other Subsidiaries of a Borrower (provided that, the surviving entity is a Non-Excluded Subsidiary; -------- and further provided that if any such Person is a Guarantor, the ------- -------- surviving entity is also a Guarantor);
(c) acquisitions by the Company, Samsonite Europe, or any direct Wholly-Owned Non-Excluded Subsidiary of the Company, of other Persons which thereby become Wholly-Owned Non-Excluded Subsidiaries, or divisions or business segments of other Persons (whether by way of purchase of assets or capital stock, merger or otherwise),
(i) the Company has obtained the prior written consent of the Majority Lenders for acquisitions involving cash Investments and/or other monetary purchase consideration (including for this purpose, without limitation, cash outlays, deferred purchase price payment obligations and any applicable Indebtedness acquired or assumed from such Person and any applicable Indebtedness of such Person if such Person is acquired as an entity or otherwise becomes a Subsidiary of the Company) (the "Acquisition Consideration") exceeding (1) in the aggregate for all acquisitions, $150,000,000, or (2) $60,000,000 per acquisition transaction (or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries series of the Borrower, so long as in each case the surviving Subsidiary is a Guarantorrelated acquisition transactions);
(bii) in the case of a merger or consolidation to which the Company is a party, the Company is the surviving entity, and in the case of a merger or consolidation of a Non-Excluded Subsidiary with any other Person, the surviving entity must also be a Non-Excluded Subsidiary;
(iii) such Person is in the same line of business as the Company or a Related Business;
(iv) no Default or Event of Default shall exist at the time of, and none shall exist after giving effect to, such merger, consolidation or acquisition and such transaction shall not be prohibited by the Revert Date upon Subordinated Debt Documents that are then in effect;
(v) the Board of Directors and the shareholders (if required by applicable law), or the equivalent, of each such Person has approved such merger, consolidation or acquisition;
(vi) the Company has delivered to the Administrative Agent and the Lenders reasonable prior written notice of such acquisition, which notice shall provide the Administrative Agent and the Lenders with a reasonably detailed description of the proposed acquisition;
(vii) immediately after giving effect to the acquisition the Company's unused availability for borrowing of Revolving Credit Loans under the Total Revolving Commitment shall not be less than $25,000,000;
(viii) no portion of the Loans will be used to purchase or carry margin securities or margin stock as defined in Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224 (except in a so- called "going private" transaction effected in compliance with such Regulations, in which such securities or stock, immediately upon such purchase, no longer constitute margin securities or margin stock, such that the Loans will not at any time be secured, directly or indirectly, by any margin securities or margin stock);
(ix) the business to be acquired would not subject the Agents or the Lenders to regulatory or third party approvals in connection with the exercise of any of their rights and remedies under this Credit Agreement or any other Loan Document;
(x) the business and assets so acquired shall be acquired by the Company, Samsonite Europe, or such Wholly- Owned Non-Excluded Subsidiary of the Company, as the case may be, free and clear of all liens and encumbrances (other than as permitted by (S)10.2(a)-(e) and (j), and Indebtedness (other than as permitted by (S)10.1(k) or (l));
(xi) no contingent obligations or liabilities will be incurred or assumed in connection with such acquisition which could reasonably be expected to have a Material Adverse Effect;
(xii) the Company or such other applicable Person involved in the acquisition has taken or caused to be taken all necessary actions to grant to the Administrative Agent a first priority perfected lien (except for Permitted Liens having priority under applicable law) in the capital stock or other equity interests to be acquired in connection with such acquisition to the extent required by (S)9.15 hereof;
(xiii) the Company has demonstrated to the satisfaction of the Administrative Agent, based on a pro --- forma Compliance Certificate, compliance with (S)11 hereof ----- on a pro forma basis (and the satisfaction of each of the --- ----- Special Conditions) immediately prior to and after giving effect to such acquisition (provided, for purposes only of -------- determining compliance (and only under this clause (xiii) of this (S)10.5.
1) by the Borrowers with (S)11.1 and 11.2, EBITDA shall (without duplication) include the EBITDA for the Person to be acquired for the four (4) full consecutive fiscal quarters of such Person most recently ended immediately preceding the acquisition and Consolidated Total Interest Expense and Total Funded Indebtedness shall be computed on a pro forma basis for (whether pursuant and as of the end of) the --------- Reference Period most recently ended, giving effect to an Asset Swap the consolidated capital structure projected to be existing immediately after such acquisition is to be Consummated, including any net changes in Indebtedness levels resulting therefrom, and in the case of floating interest rates, utilizing such applicable interest rates as they are in effect at the time such pro forma calculation is --------- performed) and assuming for the purpose of such pro forma --------- computation that such projected consolidated capital structure was in effect during the entire Reference Period; and
(xiv) in the case of any acquisition of capital stock or otherwiseother equity interests, the issuer thereof must become a Subsidiary; and any new Subsidiary formed or acquired as a result of or in connection with any acquisition shall be or then become a Wholly-Owned Subsidiary of the Company (or, in the case of a new Foreign Subsidiary, a Wholly-Owned Non- Excluded Subsidiary of Samsonite Europe) (the acquisitions permitted under the foregoing clause (c) of stock, or other securities of, this (S)10.5.1 being referred to as the "Permitted Acquisitions");
(d) acquisitions by either of the Borrowers or any assets of, Non- Excluded Subsidiary of one hundred percent (100%) of the capital stock of an Emerging Market Subsidiary owned by another Borrower or any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) Non-Excluded Subsidiary so long as no Default or Event of Default has occurred and is continuing or would exist as a result from thereof and so long as such acquisitionan acquisition and disposition is not prohibited by the Subordinated Debt Documents that are then in effect;
(iie) acquisition by either of the Borrowers or any Non- Excluded Subsidiary, of the entire equity interest in Samsonite Italia that is not less than five currently owned by them, for a purchase price not in excess of the fair market value thereof, such that they will after such acquisition collectively own 100% of the equity interests (5and all rights appurtenant thereto) Business Days of Samsonite Italia, so long as each of the Special Conditions is satisfied immediately prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, immediately after giving effect to such acquisitiontransaction, all covenants contained herein will be satisfied on a Pro Forma Basis and so long as such transaction is not prohibited by the Subordinated Debt Documents that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired are then in any way;effect; or
(iiif) all actions have been taken subject to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned Borrowers providing satisfactory financial information to the Administrative Agent as security for setting forth the irrevocable payment pro forma effect upon EBITDA --------- -174- and performance compliance with the covenants contained in full (S)11 on a prospective basis of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assetsthereof, the FCC shall have issued orders approving or consenting to acquisition by either of the Borrowers from an unaffiliated third party of the entire equity interest in Ace, for a purchase price not exceeding the fair market value thereof, such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed Borrowers will after such acquisition in accordance with the terms collectively own, directly or indirectly, 100% of the contracts equity interests (and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered rights relating to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation ownership of such acquisition equity interests) of Ace, so long as (i) each of the Special Conditions is satisfied immediately prior to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, immediately after giving effect to such transaction; (ii) the acquired business is only in the same line of business as the Borrowers or a Related Business; (iii) the conditions set forth in clauses (ii) through (xiv) of (S)10.5.1(c) are satisfied in connection therewith, (iv) the transaction preserves all now existing obligations of Ace and its Affiliates with respect to license fees, royalties, and similar amounts (however characterized) owing to the Company and its Subsidiaries, on terms and with a structure no less favorable to the Company than the terms and structure thereof as of the date hereof, except for changes to such terms and structure that are made in the ordinary course of business on an arms-length basis prior to the date of such acquisition, provided that any such changes in the identity of -------- the Person to which such obligations are payable and any such changes that are made in contemplation or anticipation of such acquisition will in any event be deemed not to have been made in the ordinary course of business, and further provided that, ------- -------- without limiting the generality of the immediately preceding proviso, any changes that are made within the period of 6 months immediately preceding the earlier of (a) the date that either of the Borrowers enters into a binding agreement to make such acquisition and (b) the date of the consummation of such an acquisition, will be deemed to have been made in contemplation or anticipation of such acquisition; (v) such transaction is not prohibited by the Subordinated Debt Documents that are then in effect; and (vi) such transaction constitutes the direct or indirect acquisition of all or substantially all of the operating businesses of Ace; In the event any new Significant Subsidiary is formed, acquired or exists as a result of or in connection with any acquisition, the Loan Documents shall be amended and/or supplemented as to the appropriate Persons as necessary to make the terms and conditions of the Loan Documents (including but not limited to the Guarantees and Security Documents) applicable to such Significant Subsidiary, and its capital stock, in the manner and to the extent described in (S)(S)7, 9.13, 9.15, and 9.24 hereof.
Appears in 1 contract
Samples: Multicurrency Revolving Credit and Term Loan Agreement (Samsonite Holdings Inc)
Mergers and Acquisitions. The None of the Borrowers or the Non-Borrower will notSubsidiaries shall, and will not permit any of its Subsidiaries todirectly or indirectly, become a party to any merger, amalgamation amalgamation, or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of the stock of another Person or all or substantially all the assets or a radio broadcasting, television broadcasting or publishing business or business unit thereofof another Person (other than the acquisition of assets in the ordinary course of business consistent with past practices or the acquisition of Excluded Subsidiaries to the extent permitted under Section 7.02(i)) except the merger or consolidation of, or asset or stock acquisitions between Borrowers and except as otherwise provided thatbelow in this Section 7.04(a). The Borrowers and the Non-Borrower Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or a business unit of another Person or one hundred percent (100%) of the stock or other Equity Interests of any other Person, including by merger, amalgamation or consolidation, (any transaction satisfying the requirements of this Section 7.04(a), a “Permitted Acquisition”) so long as:
(i) the Borrowers are in current compliance with and, after giving pro forma effect to the proposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in compliance with all of its covenants and agreements contained in this Agreement and on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement;
(ii) for any acquisition or series of related acquisitions in which the cash consideration (including cash deferred payments, contingent or otherwise, and the aggregate amount of all Indebtedness assumed or, in the case of an acquisition of Equity Interests, including all Indebtedness of the target company) to be paid by any Borrower in connection with such acquisition:
(A) is less than or equal to $5,000,000, the Consolidated Net Leverage Ratio shall be no greater than the then applicable Consolidated Net Leverage Ratio required under Section 7.11(b) less 0.25x;
(B) is greater than $5,000,000 but less than or equal to $50,000,000, the Consolidated Net Leverage Ratio shall be no greater than the then applicable Consolidated Net Leverage Ratio required under Section 7.11(b) less 0.50x; provided that, for the avoidance of doubt, (i) any such acquisition or series of related acquisitions with acquisition cash consideration greater than $50,000,000 (including cash deferred payments, contingent or otherwise, and the aggregate amount of Indebtedness assumed) shall not constitute a Permitted Acquisition and (ii) there shall be no limit to consideration paid in Equity Interests of the Parent.
(iii) at the time of such acquisition, no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or an Event of Default hereunder (including by way of cross-default to any other Indebtedness that would result from such acquisitionconstitute an Event of Default hereunder);
(iiiv) not less than five (5) Business Days prior the business to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially be acquired is predominantly in the form same lines of Exhibit F heretobusiness as the Borrowers, and upon or businesses reasonably related or incidental thereto (e.g., solid waste collection, transfer, hauling, recycling, or disposal);
(v) the Administrative Agent’s request, such financial projections as shall business to be necessary, acquired operates predominantly in the reasonable judgment United States or Canada;
(vi) (A) in the case of the Administrative Agent, to demonstrate that, after giving effect to such an asset acquisition, all covenants contained herein will of the assets acquired shall be satisfied on acquired by an existing Borrower or a Pro Forma Basis newly-created wholly-owned Subsidiary of the Parent, which, if it is a Domestic Subsidiary, shall become a Borrower hereunder in accordance with Section 6.20, and that 100% of the Borrower’s ability to satisfy Equity Interests issued by such Domestic Subsidiary and its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
assets (iii) all actions have been taken subject to the reasonable satisfaction provisions of the Administrative Agent Section 10.15 with respect to provide Real Property and Motor Vehicles) and shall be pledged simultaneously with such acquisition to the Administrative Agent, for the benefit of the Lenders Secured Parties, in accordance with Section 10.15, (B) in the case of an acquisition of Equity Interests of a U.S. company, the acquired company, simultaneously with such acquisition, shall become a Borrower in accordance with Section 6.20 and 100% of its Equity Interests and its assets (to the extent it is Collateral) shall be pledged simultaneously with such acquisition to the Administrative Agent, a first priority perfected security interest in all for the benefit of the assets so Secured Parties, or the acquired company shall be merged or amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such newly-acquired or newly-created Subsidiary shall otherwise comply with the provisions of Section 6.20; or (excluding any Excluded AssetsC) pursuant in the case of acquisition of Equity Interests of a foreign Person that, in connection therewith, becomes a Foreign Subsidiary, the acquiring Borrower shall pledge the capital stock or other Equity Interests of such Foreign Subsidiary simultaneously with such acquisition to the Security DocumentsAdministrative Agent, free for the benefit of the Secured Parties (provided that not more than 65% of the total voting power of all Liens outstanding capital stock or other than Permitted LiensEquity Interest of any such first-tier Foreign Subsidiary shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to be pledged);
(vii) if the total consideration in connection with any such acquisition, including the aggregate amount of all liabilities assumed, but excluding the payment of all fees and expenses relating to such purchase, exceeds the Threshold Amount, then not later than seven (7) days prior to the proposed acquisition date (or such later date as the Administrative Agent may agree), the Borrowers shall furnish the Administrative Agent with (i) a copy of the purchase agreement, (ii) its audited (if available, or otherwise unaudited) financial statements for the preceding two (2) fiscal years or such shorter period of time as such entity or division has been in existence, (iii) a summary of the Borrowers’ results of their standard due diligence review, (iv) in the event case of a stock acquisitionlandfill acquisition or if the target company owns a landfill, the acquired Person shall become a wholly-owned Subsidiary review by a Consulting Engineer and a copy of the Borrower and shall comply with the terms and conditions set forth in §9.15;
Consulting Engineer’s report, (v) a Compliance Certificate demonstrating compliance with Section 7.11 on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement, (vi) written evidence that the board of directors and (if required by applicable lawApplicable Law) the shareholders, or the equivalent thereof, of the business to be acquired has have approved such acquisition;
(vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (Bvii) certified copies of all such documents other information as the Administrative Agent may reasonably request, which in each case shall have been delivered be in form and substance acceptable to the Administrative Agent;
(xviii) all FCC Licenses the board of directors and (if required by Applicable Law) the shareholders, or the equivalent thereof, of the business to be acquired shall have approved such acquisition;
(ix) if such acquisition is made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of the Parent (which may be the acquired company) which shall become a Borrower in connection with such acquisition merger, shall be transferred immediately upon consummation the surviving entity, except with respect to an Excluded Subsidiary or Non-Borrower Subsidiary; provided, that if the surviving entity is a Foreign Subsidiary, the applicable Borrower shall pledge the capital stock or other Equity Interests of each Foreign Subsidiary within 30 Business Days (or such later date as the Administrative Agent may agree) of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered merger or amalgamation to the Administrative Agent Agent, for the benefit of the Secured Parties (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to be so pledged); and
(x) cash consideration to be paid by any Borrower in connection with any acquisition or series of related acquisitions (including cash deferred payments, contingent or otherwise, and the aggregate amount of all Indebtedness assumed or, in the case of an updated Schedule 8.3(bacquisition of Equity Interests, including all Indebtedness of the target company) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionshall not exceed $50,000,000.
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Consolidated Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition acquire (whether pursuant to an Asset Swap in one transaction or otherwisea series of transactions) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding of any Excluded Assets) pursuant to Person or the Security Documents, free capital stock or securities of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholdersany Person, or the equivalent thereofconsolidate with or merge into any Person or permit any Person to consolidate or merge into it, of the business to be acquired has approved such acquisition;
unless: (vi) all of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(viia) in the case of an acquisition, such acquisition is not a Hostile Acquisition; (b) any acquisition involving domestic radio business acquired in such transaction is similar or television assetsrelated to the businesses engaged in by the Borrower and its Consolidated Subsidiaries on the date hereof; (c) in the case of a merger (i) if the Borrower is a party to such merger, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) Borrower is the surviving entity and the management of the Borrower shall have delivered be substantially unchanged and (ii) if a Consolidated Subsidiary is a party to such merger, either the Administrative Agent evidence reasonably satisfactory Borrower or a Consolidated Subsidiary is the surviving entity; (d) immediately after giving effect and pro forma effect thereto, no Default shall exist; and (e) if the Borrower incurs Funded Debt in excess of $25,000,000 to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquiredfinance, other than Permitted liensor otherwise in connection with, have been discharged in full;
any acquisition or merger otherwise permitted by this Agreement, then (ixi) the Borrower shall have delivered to the Administrative Agent ratio of (A) evidence satisfactory to the Administrative Agent that total consideration given by the Borrower or and its Subsidiaries in connection therewith to (B) the projected net cash flow from the assets acquired pursuant to such Subsidiary has completed transaction for the twelve-month period immediately following the closing of such acquisition transaction, must not be greater than 8.00 to 1.00 (for purposes of this clause (a), "projected net cash flow" shall mean the Borrower's estimate of the operating earnings from the assets acquired pursuant to such transaction for the twelve (12) month period immediately following the closing of such transaction, before tax, plus any depreciation and amortization included in such estimated operating earnings, all determined in accordance with generally accepted accounting principles and based upon such assumptions as are reasonably acceptable to the terms Majority Banks) and (ii) the Agent shall have received (A) a certificate of a Responsible Officer of the contracts and agreements entered into by such Person Borrower showing satisfaction of the condition set forth in connection with such acquisitionSection 6.07(e)(i), and (B) certified copies of all such documents shall have been delivered other documents, opinions and information that the Agent or the Majority Banks may reasonably request in order to substantiate the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionsame.
Appears in 1 contract
Samples: Credit Agreement (Kirby Corp)
Mergers and Acquisitions. The None of the Borrowers or the Non-Borrower will notSubsidiaries shall, and will not permit any of its Subsidiaries todirectly or indirectly, become a party to any merger, amalgamation amalgamation, or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of the stock of another Person or all or substantially all the assets or a radio broadcasting, television broadcasting or publishing business or business unit thereofof another Person (other than the acquisition of assets in the ordinary course of business consistent with past practices or the acquisition of Excluded Subsidiaries to the extent permitted under Section 7.02(i)) except the merger, amalgamation or consolidation of, or asset or stock acquisitions between Borrowers and except as otherwise provided thatbelow in this Section 7.04(a). The Borrowers and the Non-Borrower Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or a business unit of another Person or one hundred percent (100%) of the stock or other Equity Interests of any other Person, including by merger, amalgamation or consolidation, (any transaction satisfying the requirements of this Section 7.04(a), a “Permitted Acquisition”) so long as:
(i) the Borrowers are in pro forma compliance with the financial covenants contained in Section 7.11 (including, if applicable, any Elevated Leverage Ratio Period to be elected in connection with such acquisition) after giving effect to any such acquisition and any Indebtedness incurred in connection therewith;
(ii) at the time of such acquisition, no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F heretocontinuing, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents acquisition will not be impaired in otherwise create a Default or an Event of Default hereunder (including by way of cross-default to any wayother Indebtedness that would constitute an Event of Default hereunder);
(iii) the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto (e.g., solid waste collection, transfer, hauling, recycling, disposal or organics);
(iv) the business to be acquired operates predominantly in the United States or Canada;
(A) in the case of an asset acquisition, all actions have been taken of the assets acquired shall be acquired by an existing Borrower or a newly-created wholly-owned Subsidiary of the Parent, which, if it is a Domestic Subsidiary, shall become a Borrower hereunder in accordance with and in the time periods prescribed by Section 6.20, and 100% of the Equity Interests issued by such Domestic Subsidiary and its assets (subject to the reasonable satisfaction provisions of the Administrative Agent Section 10.15 with respect to provide Real Property and Motor Vehicles) and shall be pledged to the Administrative Agent, for the benefit of the Lenders Secured Parties, in accordance with Borrower in accordance with and in the time periods prescribed by Sections 6.20 and Section 10.15, (B) in the case of an acquisition of Equity Interests of a U.S. company, the acquired company, shall become a Borrower in accordance with and in the time periods prescribed by Section 6.20 and 100% of its Equity Interests and its assets (to the extent it is Collateral) shall be pledged to the Administrative Agent, a first priority perfected security interest in all for the benefit of the assets so Secured Parties, or the acquired company shall be merged or amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such newly-acquired or newly-created Subsidiary shall otherwise comply with the provisions of Section 6.20; or (excluding any Excluded AssetsC) pursuant in the case of acquisition of Equity Interests of a foreign Person that, in connection therewith, becomes a Foreign Subsidiary, the acquiring Borrower shall pledge the capital stock or other Equity Interests of such Foreign Subsidiary to the Security DocumentsAdministrative Agent, free for the benefit of the Secured Parties (provided that not more than 65% of the total voting power of all Liens outstanding capital stock or other than Permitted LiensEquity Interest of any such first-tier Foreign Subsidiary shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to be pledged) in accordance with and in the time periods prescribed by Section 6.20;
(vi) if the total consideration in connection with any such acquisition, including the aggregate amount of all liabilities assumed, but excluding the payment of all fees and expenses relating to such purchase, exceeds the Threshold Amount, then not later than seven (7) days prior to the proposed acquisition date (or such later date as the Administrative Agent may agree and, in each case of sub-clauses (i) through (vii) below of this sub-clause (vi) unless the Administrative Agent shall otherwise agree in writing), the Borrowers shall furnish the Administrative Agent with (i) a copy of the purchase agreement, (ii) its audited (if available, or otherwise unaudited) financial statements for the preceding two (2) fiscal years or such shorter period of time as such entity or division has been in existence, (iii) a summary of the Borrowers’ results of their standard due diligence review, (iv) in the event case of a stock acquisitionlandfill acquisition or if the target company owns a landfill, the acquired Person shall become a wholly-owned Subsidiary review by a Consulting Engineer and a copy of the Borrower and shall comply with the terms and conditions set forth in §9.15;
Consulting Engineer’s report, (v) a Compliance Certificate demonstrating compliance with Section 7.11 (after giving effect to any Elevated Leverage Ratio Period elected in connection with such acquisition) on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement, (vi) written evidence that the board of directors and (if required by applicable lawApplicable Law) the shareholders, or the equivalent thereof, of the business to be acquired has have approved such acquisition;
, and (vivii) all of the Borrower’s and/or its Subsidiaries’ (such other information as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance may reasonably request, which in full of the Obligations, pursuant to Collateral Assignments of Contracts each case shall be in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vii) in the case board of any acquisition involving domestic radio directors and (if required by Applicable Law) the shareholders, or television assetsthe equivalent thereof, of the FCC business to be acquired shall have issued orders approving or consenting to approved such acquisition;; and
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed if such acquisition in accordance with the terms is made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of the contracts and agreements entered into by such Person Parent (which may be the acquired company) which shall become a Borrower in connection with such acquisitionmerger, and shall be the surviving entity, except with respect to an Excluded Subsidiary or Non-Borrower Subsidiary; provided, that if the surviving entity is a Foreign Subsidiary, the applicable Borrower shall pledge the capital stock or other Equity Interests of each Foreign Subsidiary within 30 Business Days (Bor such later date as the Administrative Agent may agree) certified copies of all such documents shall have been delivered merger or amalgamation to the Administrative Agent;
, for the benefit of the Secured Parties (x) provided that not more than 65% of the total voting power of all FCC Licenses acquired in connection with such acquisition outstanding capital stock or other Equity Interest of any first-tier Foreign Subsidiary of a Borrower shall be transferred immediately upon consummation required to be so pledged and no Equity Interests of such acquisition any non-first-tier Foreign Subsidiary shall be required to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionbe so pledged).
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or (b) the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(bc) after the Revert Date upon prior written notice any stock acquisition permitted to the Administrative Agent, the acquisition (whether be made pursuant to an Asset Swap §9.3(a)-(d) or otherwise(f)-(i) of stockhereof, (d) any merger or other securities of, asset or stock acquisition by the Borrower or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
its Subsidiaries of Persons (i) no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessaryor, in the reasonable judgment case of the Administrative Agent, to demonstrate that, after giving effect to such an asset acquisition, all covenants contained herein will be satisfied on assets of a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
(iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(ivPerson) in the event same or related line of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of business as the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) respect to which the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of each of the business Borrower or the applicable Subsidiary and of the Person to be acquired has approved such acquisition;
merger, consolidation or acquisition (via “Standard Permitted Acquisition”) all of the Borrower’s and/or its Subsidiaries’ (so long as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with aggregate consideration for such acquisition to including all assumed Indebtedness and contingent obligations (the extent permitted have been assigned to “Consideration”) shall not exceed $20,000,000, and (e) any Standard Permitted Acquisition for which the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
Consideration shall exceed $20,000,000 (viia “Special Permitted Acquisition”) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
so long as: (viiii) the Borrower shall have delivered to provided the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances Lender with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms prior written notice of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified which notice shall include a reasonably detailed description of such Special Permitted Acquisition, together with copies of all such documents shall have been delivered letters of intent and material agreements relating thereto and (ii) not less than five (5) Business Days prior to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such the proposed acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(bLender (A) and an updated Schedule 8.21 evidence reasonably satisfactory to this Credit Agreement, as applicable, the Lender to support a Compliance Certificate demonstrating on a pro forma basis that after giving effect to such acquisitionthe Special Permitted Acquisition (1) Borrower will be in compliance with the covenant set forth in §10.2, (2) Borrower’s Funded Debt to EBITDA Ratio will be less than 2.00:1.00 and (3) the sum of (x) Borrower’s cash and cash equivalents plus (y) the Total Commitment less the outstanding amount of Loans, the Maximum Drawing Amount and all Unpaid Reimbursement Obligations will exceed $25,000,000; and (B) a certificate from the chief financial officer of the Borrower to the effect that no Default or Event of Default then exists or would result after giving effect to the Special Permitted Acquisition.
Appears in 1 contract
Mergers and Acquisitions. The None of the Borrowers or the Non-Borrower will notSubsidiaries shall, and will not permit any of its Subsidiaries todirectly or indirectly, become a party to any merger, amalgamation amalgamation, or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
(a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of the stock of another Person or all or substantially all the assets or a radio broadcasting, television broadcasting or publishing business or business unit thereofof another Person (other than the acquisition of assets in the ordinary course of business consistent with past practices or the acquisition of Excluded Subsidiaries to the extent permitted under Section 7.02(i)) except the merger, amalgamation or consolidation of, or asset or stock acquisitions between Borrowers and except as otherwise provided thatbelow in this Section 7.04(a). The Borrowers and the Non-Borrower Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or a business unit of another Person or one hundred percent (100%) of the stock or other Equity Interests of any other Person, including by merger, amalgamation or consolidation, (any transaction satisfying the requirements of this Section 7.04(a), a “Permitted Acquisition”) so long as:
(i) the Borrowers are in pro forma compliance with the financial covenants contained in Section 7.11 (including, if applicable, any Elevated Leverage Ratio Period to be elected in connection with such acquisition) after giving effect to any such acquisition and any Indebtedness incurred in connection therewith;
(ii) at the time of such acquisition, no Default or Event of Default has occurred and is continuing or would result from such acquisition;
(ii) not less than five (5) Business Days prior to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially in the form of Exhibit F heretocontinuing, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents acquisition will not be impaired in otherwise create a Default or an Event of Default hereunder (including by way of cross-default to any wayother Indebtedness that would constitute an Event of Default hereunder);
(iii) the business to be acquired is predominantly in the same lines of business as the Borrowers, or businesses reasonably related or incidental thereto (e.g., solid waste collection, transfer, hauling, recycling, disposal or organics);
(iv) the business to be acquired operates predominantly in the United States or Canada;
(v) (A) in the case of an asset acquisition, all actions have been taken of the assets acquired shall be acquired by an existing Borrower or a newly-created wholly-owned Subsidiary of the Parent, which, if it is a Domestic Subsidiary, shall become a Borrower hereunder in accordance with and in the time periods prescribed by Section 6.20, and 100% of the Equity Interests issued by such Domestic Subsidiary and its assets (subject to the reasonable satisfaction provisions of the Administrative Agent Section 10.15 with respect to provide Real Property and Motor Vehicles) and shall be pledged to the Administrative Agent, for the benefit of the Lenders Secured Parties, in accordance with Borrower in accordance with and in the time periods prescribed by Sections 6.20 and Section 10.15, (B) in the case of an acquisition of Equity Interests of a U.S. company, the acquired company, shall become a Borrower in accordance with and in the time periods prescribed by Section 6.20 and 100% of its Equity Interests and its assets (to the extent it is Collateral) shall be pledged to the Administrative Agent, a first priority perfected security interest in all for the benefit of the assets so Secured Parties, or the acquired company shall be merged or amalgamated with and into a wholly-owned Subsidiary that is a Borrower and such newly-acquired or newly-created Subsidiary shall otherwise comply with the provisions of Section 6.20; or (excluding any Excluded AssetsC) pursuant in the case of acquisition of Equity Interests of a foreign Person that, in connection therewith, becomes a Foreign Subsidiary, the acquiring Borrower shall pledge the capital stock or other Equity Interests of such Foreign Subsidiary to the Security DocumentsAdministrative Agent, free for the benefit of the Secured Parties (provided that not more than 65% of the total voting power of all Liens outstanding capital stock or other than Permitted LiensEquity Interest of any such first-tier Foreign Subsidiary shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be required to be pledged) in accordance with and in the time periods prescribed by Section 6.20;
(vi) if the total consideration in connection with any such acquisition, including the aggregate amount of all liabilities assumed, but excluding the payment of all fees and expenses relating to such purchase, exceeds the Threshold Amount, then not later than seven (7) days prior to the proposed acquisition date (or such later date as the Administrative Agent may agree and, in each case of sub-clauses (i) through (vii) below of this sub-clause (vi) unless the Administrative Agent shall otherwise agree in writing), the Borrowers shall furnish the Administrative Agent with (i) a copy of the purchase agreement, (ii) its audited (if available, or otherwise unaudited) financial statements for the preceding two (2) fiscal years or such shorter period of time as such entity or division has been in existence, (iii) a summary of the Borrowers’ results of their standard due diligence review, (iv) in the event case of a stock acquisitionlandfill acquisition or if the target company owns a landfill, the acquired Person shall become a wholly-owned Subsidiary review by a Consulting Engineer and a copy of the Borrower and shall comply with the terms and conditions set forth in §9.15;
Consulting Engineer’s report, (v) a Compliance Certificate demonstrating compliance with Section 7.11 (after giving effect to any Elevated Leverage Ratio Period elected in connection with such acquisition) on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement, (vi) written evidence that the board of directors and (if required by applicable lawApplicable Law) the shareholders, or the equivalent thereof, of the business to be acquired has have approved such acquisition;
, and (vivii) all of the Borrower’s and/or its Subsidiaries’ (such other information as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance may reasonably request, which in full of the Obligations, pursuant to Collateral Assignments of Contracts each case shall be in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(vii) in the case board of any acquisition involving domestic radio directors and (if required by Applicable Law) the shareholders, or television assetsthe equivalent thereof, of the FCC business to be acquired shall have issued orders approving or consenting to approved such acquisition;; and
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed if such acquisition in accordance with the terms is made by a merger or amalgamation, a Borrower, or a wholly-owned Subsidiary of the contracts and agreements entered into by such Person Parent (which may be the acquired company) which shall become a Borrower in connection with such acquisitionmerger, and shall be the surviving entity, except with respect to an Excluded Subsidiary or Non-Borrower Subsidiary; provided, that if the surviving entity is a Foreign Subsidiary, the applicable Borrower shall pledge the capital stock or other Equity Interests of each Foreign Subsidiary within 30 Business Days (Bor such later date as the Administrative Agent may agree) certified copies of all such documents shall have been delivered merger or amalgamation to the Administrative Agent;
, for the benefit of the Secured Parties (x) provided that not more than 65% of the total voting power of all FCC Licenses acquired in connection with such acquisition outstanding capital stock or other Equity Interest of any first-tier Foreign Subsidiary of a Borrower shall be transferred immediately upon consummation required to be so pledged and no Equity Interests of such acquisition any non-first-tier Foreign Subsidiary shall be required to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionbe so pledged).
Appears in 1 contract
Mergers and Acquisitions. The Borrower will not, and Borrowers will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisitionacquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices and with respect to asset swaps) except the merger or consolidation of, or enter into asset or stock acquisitions between existing Borrowers, and except as otherwise provided in this §7.4.
1. The Borrowers may purchase or otherwise acquire assets or the stock or the other equity interests of any LMA Agreement, exceptother Person; provided that:
(a) upon prior written notice the Borrowers are in current compliance with and, giving effect to the proposed acquisition (including any borrowings made or to be made in connection therewith), will continue to be in pro forma compliance with all of the covenants in §8 hereof on a pro forma historical combined basis as if the transaction occurred on the first day of the period of measurement as determined by reference to the Compliance Certificate required to be delivered to the Administrative Agent, the merger or consolidation of one (1Agent pursuant to §6.4(c) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the Borrower, so long as in each case the surviving Subsidiary is a Guarantorhereof;
(b) after at the Revert Date upon prior written notice to the Administrative Agenttime of such acquisition, the acquisition (whether pursuant to an Asset Swap or otherwise) of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
(i) no Default or Event of Default has occurred and is continuing continuing, and such acquisition will not otherwise create a Default or would result from such acquisitionan Event of Default hereunder;
(iic) not less than five (5) Business Days prior the business to the consummation of such proposed acquisition, the Borrower shall have delivered to the Administrative Agent a duly executed certificate substantially be acquired is predominantly in the form same lines of Exhibit F heretobusiness as the Borrowers, and upon the Administrative Agent’s requestor businesses reasonably related or incidental thereto (e.g., such financial projections as shall be necessarynon-hazardous solid waste collection, in the reasonable judgment of the Administrative Agenttransfer, to demonstrate thathauling, after giving effect to such acquisitionrecycling, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any wayor disposal);
(iiid) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so to be acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-be owned by an existing or newly created Subsidiary of the Parent which Subsidiary shall be or became (in accordance with §6.16) a Borrower and shall comply with the terms and conditions set forth in §9.15;hereunder; and
(ve) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vif) all if such acquisition is made by a merger, a Borrower, or a wholly-owned Subsidiary of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, to and under each contract and agreement entered into by such Person Parent which shall become a Borrower in connection with such acquisition to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligationsmerger, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisition, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisitionsurviving entity.
Appears in 1 contract
Samples: Revolving Credit Agreement (Waste Connections Inc/De)
Mergers and Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, or agree to or effect any asset acquisition or stock acquisition, or enter into any LMA Agreement, except:
acquisition (other than the acquisition of assets in the ordinary course of business consistent with past practices) except (a) upon prior written notice to the Administrative Agent, the merger or consolidation of one (1) or more of the Operating Subsidiaries of the Borrower with and into the Borrower, ; (b) or the merger or consolidation of two (2) or more wholly-owned (A) Operating Subsidiaries or (B) License Subsidiaries of the BorrowerBorrower provided, so long as in each case the surviving if only one such Subsidiary is a Guarantor;
(b) after the Revert Date upon prior written notice to the Administrative Agent, the acquisition Subsidiary which is a Guarantor shall be the survivor of such merger or consolidation; and (whether pursuant to an Asset Swap c) other asset or otherwisestock acquisitions of Persons in the same or a similar line of business as the Borrower (a "Permitted Acquisition") of stock, or other securities of, or any assets of, any Person, in each case to the extent such acquisition would involve all or substantially all of a radio broadcasting, television broadcasting or publishing business or business unit thereof, provided that:
where (i) no Default or Event of Default the Borrower has occurred and is continuing or would result from such acquisition;
(ii) not less than provided the Agent with five (5) Business Days prior to the consummation written notice of such proposed acquisitionPermitted Acquisition, which notice shall include a reasonably detailed description of such Permitted Acquisition; (ii) the Borrower shall have delivered has provided the Agent with all documents, instruments and agreements to be entered into in connection with the Administrative Agent a duly executed certificate substantially in the form of Exhibit F hereto, and upon the Administrative Agent’s request, such financial projections as shall be necessary, in the reasonable judgment of the Administrative Agent, to demonstrate that, after giving effect to such acquisition, all covenants contained herein will be satisfied on a Pro Forma Basis and that the Borrower’s ability to satisfy its payment obligations hereunder and under the other Loan Documents will not be impaired in any way;
Permitted Acquisition; (iii) all actions have been taken to the reasonable satisfaction of the Administrative Agent to provide to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in all of the assets so acquired (excluding any Excluded Assets) pursuant to the Security Documents, free of all Liens other than Permitted Liens;
(iv) in the event of a stock acquisition, the acquired Person shall become a wholly-owned Subsidiary of the Borrower and shall comply with the terms and conditions set forth in §9.15;
(v) the board of directors and (if required by applicable law) the shareholders, or the equivalent thereof, of the business to be acquired has approved such acquisition;
(vi) all would not subject the Agent or any of the Borrower’s and/or its Subsidiaries’ (as the case may be) rights and interests in, Banks to and under each contract and agreement entered into by such Person regulatory or third party approvals in connection with the exercise of its rights and remedies under this Credit Agreement and the other Loan Documents; (iv) the business and assets so acquired in such Permitted Acquisition shall be acquired by the Borrower free and clear of all liens (other than Permitted Liens) and all Indebtedness (other than Indebtedness expressly permitted pursuant to ss 9.1 hereof), and the purchase price for any single acquisition or series of related acquisitions to be paid in any form of consideration other than the capital stock of the Borrower does not exceed $20,000,000, and the aggregate purchase price for all acquisitions made during the term of this Credit Agreement which are to be paid in any form of consideration other than the capital stock of the Borrower does not exceed $50,000,000 and, in addition, all cash related charges taken in connection with all such Permitted Acquisitions shall not exceed $10,000,000 in the aggregate for all such Permitted Acquisitions; (v) to the extent permitted have been assigned to the Administrative Agent as security for the irrevocable payment and performance in full of the Obligations, pursuant to Collateral Assignments of Contracts in form and substance reasonably satisfactory to Administrative Agent;
(vii) in the case of any acquisition involving domestic radio or television assets, the FCC shall have issued orders approving or consenting to such acquisition;
(viii) the Borrower shall have delivered to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that all liens and encumbrances with respect to the properties and assets so acquired, other than Permitted liens, have been discharged in full;
(ix) the Borrower shall have delivered to the Administrative Agent (A) evidence satisfactory to the Administrative Agent that the Borrower or such Subsidiary has completed such acquisition in accordance with the terms of the contracts and agreements entered into by such Person in connection with such acquisition, and (B) certified copies of all such documents shall have been delivered to the Administrative Agent;
(x) all FCC Licenses acquired in connection with such acquisition shall be transferred immediately upon consummation of such acquisition to a License Subsidiary;
(xi) substantially contemporaneously with such acquisitionapplicable, the Borrower shall have delivered to the Administrative Agent an updated Schedule 8.3(b) and an updated Schedule 8.21 to this Credit Agreement, as applicable, after giving effect to such acquisition.has complied with ss 8.13 hereof;
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