Mergers; Consolidations; Acquisitions. Merge or consolidate or permit any Subsidiary of Borrowers to merge or consolidate, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers); nor acquire or permit any of its Subsidiaries to acquire all or any substantial part of the Property or stock or securities of any Person except that, so long as no Default or Event of Default exists or has occurred and is continuing, Borrowers may purchase businesses in the lines of business conducted by the Borrowers which Borrowers have determined, in their reasonable business judgment, would enhance the business, operations, prospects and condition (financial or otherwise) of the Borrowers provided that each of the following conditions are satisfied: (a) not more than $5,000,000, or such greater amount as allowed under the Working Capital Facility, per fiscal year of Borrowers shall be paid in cash and/or incurred Indebtedness by Borrowers in respect of all acquisitions and/or investments made in any such fiscal year; (b) prior to entering into any agreement or undertaking with respect to any such acquisition or investment, Borrowers shall prepare and submit to Lender pro forma balance sheets and income statements for the entity to be acquired and consolidated with the Borrowers demonstrating to the satisfaction of Lender continuing compliance with all the covenants in Section 6.3 for the next twelve (12) fiscal months; (c) the Borrowers shall furnish to the Lender notice and copies of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and allow Lender and its representatives reasonable access to financial information and the assets and Properties to be acquired. The Lender agrees to enter into confidentiality agreements with the Persons that Borrower may acquire on terms mutually agreeable to Lender and such Person.
Appears in 1 contract
Mergers; Consolidations; Acquisitions. Merge or consolidate or permit any Subsidiary of Borrowers to merge or consolidate(a) No Borrower shall, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers); nor acquire or shall it permit any of its Subsidiaries to, merge or consolidate with another entity; PROVIDED that any Subsidiary may merge or consolidate with or into any other Subsidiary or with or into any Borrower (provided that such Borrower is the surviving entity). The Borrowers shall not, and shall not permit any Subsidiary to, dissolve, terminate, enter into any joint venture or become a partner in any partnership. The Borrowers shall not sell, assign, encumber, pledge, transfer or otherwise dispose of any interest in the Borrowers or any Subsidiary or transfer any Property to acquire any Affiliate except as otherwise expressly permitted hereby.
(b) No Borrower shall, nor shall it permit any of its Subsidiaries to, make an Acquisition, other than an Acquisition of all of the Stock or all or any substantial part substantially all of the Property or stock or securities assets of any Person (the "Target") (in each case, a "Permitted Acquisition") subject to satisfaction of the following conditions:
(i) the Agent shall receive at least thirty (30) Business Days' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition, and, in the event the Total Acquisition Price exceeds $2,500,000 or six (6) times the Target's actual unadjusted positive EBITDA for the trailing twelve (12) month period immediately prior to the proposed acquisition date, such Permitted Acquisition shall require the written approval of the Required Lenders;
(ii) such Permitted Acquisition shall only involve assets or stock of a domestic Target comprising a business, or those assets of a business, of the type engaged in by Borrowers as of the Closing Date or a similar related business, and which business would not subject the Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Financing Agreement other than approvals applicable to the exercise of such rights and remedies with respect to Borrowers prior to such Permitted Acquisition;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors and/or shareholders;
(iv) no additional Indebtedness, Guaranties, earnout incentives, contingent obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of the Parent and its Subsidiaries (including the Target) after giving effect to such Permitted Acquisition, except that(A) the advance under the Revolving Loan to fund such Permitted Acquisition, so long as (B) ordinary course trade payables and accrued expenses of the Target to the extent no Default or Event of Default exists or has shall have occurred and is continuing, Borrowers may purchase businesses in the lines of business conducted by the Borrowers which Borrowers have determined, in their reasonable business judgment, be continuing or would enhance the business, operations, prospects result after giving effect to such Permitted Acquisition and condition (financial or otherwise) of the Borrowers provided that each of the following conditions are satisfied: (a) not more than $5,000,000, or such greater amount as allowed under the Working Capital Facility, per fiscal year of Borrowers shall be paid in cash and/or incurred Indebtedness by Borrowers in respect of all acquisitions and/or investments made in any such fiscal year; (b) prior to entering into any agreement or undertaking with respect to any such acquisition or investment, Borrowers shall prepare and submit to Lender pro forma balance sheets and income statements for the entity to be acquired and consolidated with the Borrowers demonstrating to the satisfaction of Lender continuing compliance with all the covenants in Section 6.3 for the next twelve (12) fiscal months; (c) the Borrowers shall furnish to the Lender notice and copies of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and allow Lender and its representatives reasonable access to financial information and the assets and Properties to be acquired. The Lender agrees to enter into confidentiality agreements with the Persons that Borrower may acquire on terms mutually agreeable to Lender and such Person.)
Appears in 1 contract
Mergers; Consolidations; Acquisitions. Merge In any transaction or series of transactions, consolidate with or permit merge into any Subsidiary of Borrowers to merge or consolidate, with any other Person (except for mergers other than a merger of a Subsidiary into the Borrower in which the Borrower is the continuing corporation), or consolidations among the Borrowers continue in a new jurisdiction or mergers sell, convey, assign, transfer, lease or consolidations otherwise dispose of Subsidiaries with a Borrower or Borrowers); nor acquire or permit any of its Subsidiaries to acquire all or any substantial part substantially all of the Property and assets of the Borrower and the Subsidiaries, taken as a whole, or stock any Person, unless:
(i) either (a) the Borrower shall be the continuing corporation or securities (b) the corporation (if other than the Borrower) formed by such consolidation or into which the Borrower is merged, or the Person which acquires, by sale, assignment, conveyance, transfer, lease or disposition, all or substantially all of the Property and assets of the Borrower and the Subsidiaries, taken as a whole (such corporation or Person, the "Surviving Entity"), shall be a corporation organized and validly existing under the laws of the United States of America, any Person except thatpolitical subdivision thereof or any state thereof or the District of Columbia, so long as and shall expressly assume, the due and punctual payment of the principal of (and premium, if any) and interest on all the Obligations and the performance of the Borrower's covenants and obligations under this Agreement and the other Loan Documents.
(ii) immediately after giving effect to such transaction or series of transactions on a pro forma basis (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions), no Default or Event of Default exists or has Default shall have occurred and is continuingbe continuing or would result therefrom;
(iii) immediately after giving effect to such transaction or series of transactions on a pro forma basis (including, Borrowers may purchase businesses without limitation, any Indebtedness incurred or anticipated to be incurred in the lines of business conducted by the Borrowers which Borrowers have determined, in their reasonable business judgment, would enhance the business, operations, prospects and condition (financial connection with or otherwise) of the Borrowers provided that each of the following conditions are satisfied: (a) not more than $5,000,000, or such greater amount as allowed under the Working Capital Facility, per fiscal year of Borrowers shall be paid in cash and/or incurred Indebtedness by Borrowers in respect of all acquisitions and/or investments made in any such fiscal year; transaction or series of transactions), the Borrower (bor the Surviving Entity if the Borrower is not continuing) shall have a Tangible Net Worth equal to or greater than the Tangible Net Worth of the Borrower immediately prior to entering into any agreement or undertaking with respect such transactions;
(iv) immediately after giving effect to any such acquisition transaction or investment, Borrowers shall prepare and submit to Lender series of transactions on a pro forma balance sheets and income statements for basis as if such transaction or series of transactions had occurred on the entity to be acquired and consolidated with first day of the Borrowers demonstrating to Determination Period, the satisfaction of Lender continuing compliance with all Borrower (or the covenants in Section 6.3 for Surviving Entity if the next twelve (12) fiscal months; (c) the Borrowers shall furnish to the Lender notice and copies of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and allow Lender and its representatives reasonable access to financial information and the assets and Properties to be acquired. The Lender agrees to enter into confidentiality agreements with the Persons that Borrower may acquire on terms mutually agreeable to Lender and such Person.Borrower
Appears in 1 contract
Samples: Loan and Security Agreement (Bayard Drilling Technologies Inc)
Mergers; Consolidations; Acquisitions. Merge or consolidate or permit any Subsidiary or of Borrowers to merge or consolidate, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers); nor acquire or permit any of its Subsidiaries to acquire all or any substantial part of the Property Properties or stock or securities of any Person except Person, provided, that, so long as no Default or Event of Default exists or has occurred and is continuing, Borrowers may purchase businesses in the lines of business conducted by the Borrowers which Borrowers have determined, in their reasonable business judgment, would enhance the business, operations, prospects and condition (financial or otherwise) of the Borrowers provided that each of the following conditions are satisfied: satisfied (each such transaction a "Permitted Acquisition"): (a) not more than (i) $5,000,000, 10,000,000 in any single acquisition or such greater amount as allowed under investment and $25,000,000 in the Working Capital Facility, per aggregate for all acquisitions and/or investments in any fiscal year of Borrowers shall be paid in cash and/or incurred Indebtedness by Borrowers or (ii) in respect cases in which the consideration paid by Borrowers is shares of UNF common stock, the aggregate purchase price paid by Borrowers shall not exceed $25,000,000 in value for all such stock acquisitions and/or investments made in any fiscal year of Borrowers or (iii) in transactions involving any combination of cash, incurred Indebtedness and/or UNF common stock, subject to the foregoing limits (subject in all such fiscal yearcases to the limitations of Section 11.1.12 hereof); (b) prior Agent shall have determined, that after giving effect to entering into any agreement or undertaking all payments to be made by Borrowers in connection with respect to any such acquisition or investment, Borrowers shall prepare and submit to Lender pro forma balance sheets and income statements for the entity to be acquired and consolidated with the Borrowers demonstrating to the satisfaction have Availability of Lender continuing compliance with all the covenants in Section 6.3 for the next twelve (12) fiscal monthsat least $20,000,000; (c) the Borrowers shall furnish to the Lender Agent notice and copies of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and allow Lender in the event that Borrowers wish to have the Accounts and Inventory of the entity to be acquired or invested in be included in the Borrowing Base, Borrowers' shall arrange for Agent and its representatives to have reasonable access to financial information and the assets and Properties to be acquiredacquired which will, upon consummation of the acquisition, become Collateral for the Obligations; (d) if any such acquisition is structured as the acquisition of stock or other securities of a Person to be acquired or Borrowers create a Subsidiary to make the acquisition, at the election of the Agent, such entity shall become a Borrower hereunder by entering into a joinder agreement in form and substance satisfactory to Agent, or Borrowers shall cause such entity to enter into a guaranty of the Obligations and, in each case, such entity shall grant to Agent a security interest such of its assets that would constitute Collateral hereunder to secure such guaranty reasonably satisfactory to the Agent; and (e) if any indebtedness is to be issued to any seller in connection with any such transaction, the holder of such indebtedness shall enter into a subordination agreement in favor of the Agent and Lenders in form and substance satisfactory to Agent. The Lender Agent agrees to enter into confidentiality agreements with the Persons that Borrower may acquire on terms mutually agreeable to Lender Agent and such Person.
Appears in 1 contract
Samples: Loan and Security Agreement (United Natural Foods Inc)
Mergers; Consolidations; Acquisitions. Merge or consolidate or permit any Subsidiary of Borrowers to merge or consolidate, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers); Person, nor acquire or permit any of its Subsidiaries to acquire all or any substantial part of the Property or stock or securities Properties of any Person, except (i) a consolidation or merger solely involving a Borrower and one or more of its wholly owned Subsidiaries or (ii) if, after giving effect to any consolidation, merger, or acquisition ("Acquisition"), (1) a Borrower is the surviving entity of any such merger or consolidation or (2) such Borrower has acquired not less than sixty-six and two-thirds percent (66 2/3%) of the issued and outstanding capital stock of such Person except thatand such Person becomes a Guarantor or a Borrower hereunder and (3)
(a) Borrower is Solvent, so long as (b) no Default or Event of Default exists or has occurred and which is continuingthen continuing or could reasonably be anticipated to result therefrom, Borrowers may purchase businesses (c) the Acquisition is of a Person or assets in the lines same business as such Borrower or another business reasonably related thereto, (d) Lender has been given no less than thirty (30) days prior written notice of business conducted by the Borrowers any such Acquisition and shall be provided with all information which Borrowers it may reasonably request in connection with such Acquisition, (e) such Borrower shall have determined, in their reasonable business judgment, would enhance the business, operations, prospects and condition delivered to Lender no later thirty (financial or otherwise30) days prior to closing of the Borrowers provided that each of the following conditions are satisfied: Acquisition a pro forma balance sheet and cash flow projections (a) not more than $5,000,000, or such greater amount as allowed under the Working Capital Facility, per fiscal year of Borrowers which shall be paid in cash and/or incurred Indebtedness by Borrowers in respect of all acquisitions and/or investments made in any such fiscal year; (bbased on reasonable assumptions) prior giving effect to entering into any agreement or undertaking the Acquisition and with respect to any such acquisition or investmentcash flow projections, Borrowers cover the next succeeding twelve month period which shall prepare and submit to Lender pro forma balance sheets and income statements for reflect the entity to be acquired and consolidated with the Borrowers demonstrating to the satisfaction of Lender continuing compliance with all financial covenants over such period, (f) after giving effect to the covenants Acquisition, no more than $10,000,000 of Loans and Letters of Credit shall have been used in Section 6.3 connection with the financing of the payment of the purchase price of such Acquisition and all other Acquisitions, (g) the cash portion of the total consideration paid to the sellers in connection with all such Acquisitions which has been financed through the incurrence of indebtedness shall not exceed the product of (I) five (5) multiplied by (II) an amount equal to (x) the aggregate amount of Pro Forma EBITDA for the next acquired businesses or entities in all such Acquisitions, calculated for each acquired business or entity as at the time of the Acquisition thereof based upon the then most recently available twelve months' financial statements for such business or entity, (12h) fiscal months; after giving effect to any such Acquisition, Aggregate Adjusted Availability shall not be less than an amount equal to $5,000,000, (ci) the Borrowers terms and conditions of all third party financing related to such Acquisitions must be satisfactory to Lender in its reasonable discretion and (j) Lender shall furnish have received, prior to or simultaneously with the closing of each such Acquisition, an opinion of counsel reasonably satisfactory to Lender notice in all respects covering such Borrower's due incorporation, valid existence, good standing and copies of any letter of intent or other memorandum of understanding power and purchase documents for any acquisition they may contemplate and allow Lender and its representatives reasonable access to financial information and the assets and Properties to be acquired. The Lender agrees authority to enter into confidentiality agreements with the Persons that Borrower may acquire on terms mutually agreeable to Lender documents contemplated by the Acquisition (the "Acquisition Documents"), the due authorization, execution, delivery and enforceability of the Acquisition Documents, and such Personother matters as shall be covered in any opinion rendered in favor of such Borrower in connection which such Acquisition ("Permitted Acquisition").
Appears in 1 contract
Mergers; Consolidations; Acquisitions. Merge or consolidate consolidate, or permit any Subsidiary of Borrowers to merge or consolidate, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers); Person, nor acquire or acquire, nor permit any of its Subsidiaries to acquire acquire, all or any substantial part of the Property or stock or securities Properties of any Person except thatPerson. Notwithstanding any of the foregoing:
(i) any Borrower may merge or consolidate with any other Borrower, so long as no Default and any Subsidiary Guarantor may merge or Event of Default exists consolidate with any other Subsidiary Guarantor or has occurred and is continuing, Borrowers any Borrower;
(ii) any Subsidiary Guarantor may purchase businesses be liquidated or dissolved if the Borrower decides in the lines exercise of business conducted by the Borrowers which Borrowers have determined, in their its reasonable business judgment, would enhance the business, operations, prospects and condition (financial judgment that such liquidation or otherwise) of the Borrowers dissolution is desirable provided that each of the following conditions are satisfied: (a) such dissolution shall not more than $5,000,000, or such greater amount as allowed under the Working Capital Facility, per fiscal year of Borrowers shall be paid in cash and/or incurred Indebtedness by Borrowers in respect of all acquisitions and/or investments made in any such fiscal year; have a Material Adverse Effect and (b) prior to entering into upon such dissolution, any agreement or undertaking with respect to any such acquisition or investment, Borrowers shall prepare and submit to Lender pro forma balance sheets and income statements for the entity to be acquired and consolidated with the Borrowers demonstrating to the satisfaction all of Lender continuing compliance with all the covenants in Section 6.3 for the next twelve (12) fiscal months; (c) the Borrowers shall furnish to the Lender notice and copies of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and allow Lender and its representatives reasonable access to financial information and the assets and Properties Property of such Subsidiary Guarantor shall be distributed to be acquired. The Lender agrees to enter into confidentiality agreements with the Persons that Borrower(s) or Subsidiary Guarantor(s) which own(s) the capital stock of such Subsidiary Guarantor;
(iii) any Borrower may acquire on terms mutually agreeable a new Subsidiary, or merge or consolidate with another Person, as a part of any Permitted Acquisition transaction provided that (a) in the case of any Permitted Acquisition transaction which involves the purchase of the capital stock or equity interests of another Person but does not involve a merger or consolidation, the Borrower shall pledge the capital stock or equity interests of such acquired Person to Lender the Agent for the ratable benefit of the Lenders pursuant to the Pledge Agreement and the acquired Person shall become a party to this Agreement as a Subsidiary Borrowing Corporation by executing a Joinder Agreement in the form of Exhibit D attached hereto or (b) in the case of any Permitted Acquisition transaction which involves a merger of the acquired Person with the respective Borrower, the Borrower shall be the surviving entity; and
(iv) any Borrower may create a new Subsidiary provided that the Borrower shall pledge the capital stock or equity interests of such newly-created Subsidiary to the Agent for the ratable benefit of the Lenders pursuant to the Pledge Agreement and the newly-created Subsidiary shall become a party to this Agreement as a Subsidiary Borrowing Corporation by executing a Joinder Agreement. Any Person which executes a Joinder Agreement pursuant to this subsection shall be deemed to be a "Borrower" under this Agreement, and every reference herein to "Borrower" shall be deemed to include that Person.
Appears in 1 contract
Samples: Loan and Security Agreement (Gentiva Health Services Inc)
Mergers; Consolidations; Acquisitions. Merge or consolidate consolidate, or permit any Subsidiary of Borrowers to merge or consolidate, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers); nor acquire or permit any of its Subsidiaries to acquire all or any substantial part of the Property Properties or stock or securities of any Person except thatPerson, so long as no Default or Event of Default exists or has occurred and is continuingprovided, that Borrowers may purchase businesses in the lines of business conducted by the Borrowers which Borrowers have determined, in their reasonable business judgment, would enhance the business, operations, prospects and condition (financial or otherwise) of the Borrowers provided that each of the following conditions are satisfied: satisfied (each such transaction a “Permitted Acquisition”): (a) not more than $5,000,000, or such greater amount as allowed under the Working Capital Facility, per fiscal year of Borrowers shall be paid in cash and/or incurred Indebtedness by Borrowers in respect of all acquisitions and/or investments made any Material Acquisition, UNF shall have delivered to the Administrative Agent and each Lender not less than ten (10) Business Days prior to the earlier of (i) the execution of a definitive or binding agreement to enter into the proposed Permitted Acquisition and (ii) the consummation of such proposed Permitted Acquisition, a copy of the proposed acquisition agreement and a statement, certified by the principal financial or accounting officer of UNF, setting forth, in any reasonable detail, computations evidencing on a pro forma basis (determined in a manner acceptable to the Administrative Agent) compliance with the financial covenants contained in Section 9.3 hereof, immediately prior to and after giving effect to such fiscal yearproposed Permitted Acquisition; (b) UNF shall have delivered to the Administrative Agent and each Lender not less than ten (10) Business Days prior to entering the earlier of (i) the execution of a definitive or binding agreement to enter into the proposed Permitted Acquisition and (ii) the consummation of such proposed Permitted Acquisition, a statement, certified by the principal financial or accounting officer of UNF, setting forth, in reasonable detail, computations (determined in a manner reasonably acceptable to the Administrative Agent) evidencing Availability immediately prior to and after giving effect to the proposed Permitted Acquisition in an amount equal to or in excess of (x) in respect of any agreement Material Acquisition, 20% of the Borrowing Base and (y) in all other respects, 15% of the Borrowing Base, and such principal financial or undertaking with accounting officer shall have delivered to the Administrative Agent and each Lender not more than two (2) Business Days prior to the consummation of the proposed Permitted Acquisition a statement certifying that the conditions in clause (a) (in respect to any such acquisition or investment, Borrowers shall prepare of Material Acquisitions only) and submit to Lender pro forma balance sheets and income statements for the entity clause (b) of this subsection 9.2.1 continue to be acquired satisfied, which statement shall be accompanied by execution copies of the acquisition agreement and consolidated with the Borrowers demonstrating all material documents to the satisfaction of Lender continuing compliance with all the covenants be executed in Section 6.3 for the next twelve (12) fiscal monthsconnection therewith; (c) no Default or Event of Default shall exist before or after giving effect to the proposed Permitted Acquisition; (d) the Borrowers shall furnish to the Agent and each Lender notice and copies of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and allow Lender in the event that Borrowers wish to have the Accounts and Inventory of the entity to be acquired or invested in be included in the Borrowing Base, Borrowers’ shall arrange for Agent and its representatives to have reasonable access to financial information and the assets and Properties to be acquiredacquired which will, upon consummation of the acquisition, become Collateral for the Obligations; (e) if any such acquisition is structured as the acquisition of stock or other securities of a Person to be acquired or Borrowers create a Subsidiary to make the acquisition, at the election of the Agent, such entity shall become a Borrower hereunder by entering into a joinder agreement in form and substance satisfactory to Agent, or Borrowers shall cause such entity to enter into a guaranty of the Obligations and, in each case, such entity shall grant to Agent a security interest such of its assets that would constitute Collateral hereunder to secure such guaranty reasonably satisfactory to the Agent; and (f) if any indebtedness is to be issued to any seller in connection with any such transaction, the holder of such indebtedness shall enter into a subordination agreement in favor of the Agent and Lenders in form and substance satisfactory to Agent. The Lender Agent agrees to enter into confidentiality agreements with the Persons that Borrower Borrowers may acquire on terms mutually agreeable to Lender Agent and such Person.
Appears in 1 contract
Samples: Fourth Amendment Agreement (United Natural Foods Inc)
Mergers; Consolidations; Acquisitions. Merge Except as otherwise provided in this Section 8.2.1, merge or consolidate consolidate, or permit any Subsidiary of Borrowers any Borrower to merge or consolidate, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers)Person; nor acquire or acquire, nor permit any of its Subsidiaries to acquire acquire, all or any substantial part of the Property Properties of any Person; provided that the consolidation of PBI with D&K shall not constitute a violation of this covenant so long as such consolidation does not involve a merger and so long as D&K does not become directly or indirectly liable for any Indebtedness of PBI. Notwithstanding the foregoing, D & K, may acquire all or substantially all of the assets or capital stock or securities ownership interest of any Person (the "Target") (in each case, a "Permitted Acquisition") subject to the satisfaction of each of the following conditions:
(i) Lender shall receive at least thirty (30) Business Days' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of a wholesale drug or related service industry;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors;
(iv) no additional Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (A) Loans made hereunder and (B) ordinary course trade payables and accrued expenses;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including all transaction costs and all Indebtedness and liabilities incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and Target) shall not exceed $15,000,000 in the aggregate in any fiscal year of Borrowers;
(vi) the Target shall, for the trailing twelve-month period preceding the date of the Permitted Acquisition have net earnings before interest expense, taxes, and allowances for depreciation and amortization, all as determined in accordance with GAAP, of greater than zero;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Liens);
(viii) at or prior to the closing of any Permitted Acquisition, Lender will be granted a first priority perfected Lien (subject to Permitted Liens) in all assets acquired pursuant thereto or in the assets and capital stock of the Target, and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Lender in connection therewith, and if the Permitted Acquisition involves the acquisition of stock or other ownership interest of the Target, all documents, instruments and agreements necessary or desirable to cause Target to be a Borrower hereunder, including without limitation, amendments to this Agreement, stock pledge agreements, and stock powers;
(ix) not less than ten (10) Business Days prior to any such Permitted Acquisition, Borrowers shall have delivered to Lender, in form and substance satisfactory to Lender:
(A) a pro forma consolidated balance sheet of Borrowers and their Subsidiaries (including the Target) (the "Acquisition Pro Forma"), based on the most recently delivered monthly financial statements (pursuant to Section 8.1.3(ii)) and taking into account such Permitted Acquisition and the funding of all Loans in connection therewith;
(B) updated versions of the most recently delivered Projections covering the current fiscal year and the subsequent fiscal year of Borrowers, commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the requirements of Section 8.1.3(iii) (the "Acquisition Projections") and based upon historical financial data of Borrowers and Target for the current fiscal year, taking into account such Permitted Acquisition; and
(C) a certificate from the chief financial officer of each Borrower to the effect that: (v) all of the requirements set forth herein with respect to such Permitted Acquisition have been satisfied; (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against other Borrowers and each other Subsidiary of each Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Section 8.3 thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, so long as which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Lender;
(x) on or prior to the date of such Permitted Acquisition, Lender shall have received, in form and substance satisfactory to Lender, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Lender;
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default exists or has shall have occurred and is be continuing; and
(xii) immediately following such Permitted Acquisition, Borrowers may purchase businesses in shall have Availability of not less than $20,000,000. Notwithstanding the lines of business conducted by foregoing, the Borrowers which Borrowers have determined, in their reasonable business judgment, would enhance the business, operations, prospects and condition (financial or otherwise) Inventory of the Borrowers provided that each Target shall not be included in Eligible Inventory without (i) the completion of the following conditions are satisfied: an audit of such Inventory by Lender (a) not more than $5,000,000, or Lender agrees to use its reasonable best efforts to complete its audit of such greater amount as allowed under the Working Capital Facility, per fiscal year of Borrowers shall be paid in cash and/or incurred Indebtedness by Borrowers in respect of all acquisitions and/or investments made in any such fiscal year; (b) Inventory prior to entering into any agreement or undertaking the date of closing with respect to any such acquisition or investmentPermitted Acquisition), Borrowers shall prepare and submit to Lender pro forma balance sheets and income statements for the entity to be acquired and consolidated with the Borrowers demonstrating to the satisfaction of Lender continuing compliance with all the covenants in Section 6.3 for the next twelve (12) fiscal months; (cii) the Borrowers shall furnish to the Lender notice and copies prior written consent of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and allow Lender and its representatives reasonable access to financial information and the assets and Properties to be acquired. The Lender agrees to enter into confidentiality agreements with the Persons that Borrower may acquire on terms mutually agreeable to Lender and such PersonLender."
Appears in 1 contract
Samples: Loan and Security Agreement (D & K Healthcare Resources Inc)
Mergers; Consolidations; Acquisitions. Merge or consolidate consolidate, or permit any Subsidiary of Borrowers to merge or consolidate, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers); Person, nor acquire or acquire, nor permit any of its Subsidiaries to acquire acquire, all or any substantial part of the Property or stock or securities Properties of any Person except thatPerson; nor change its or any Subsidiary's jurisdiction of incorporation or organization or Type of Organization or its or any Subsidiary's legal name without giving Agent at least thirty (30) days prior written notice of such change. Notwithstanding any of the foregoing:
(i) any Borrower may merge or consolidate with any other Borrower, so long as no Default and any Subsidiary Guarantor may merge or Event of Default exists consolidate with any other Subsidiary Guarantor or has occurred and is continuing, Borrowers any Borrower;
(ii) any Subsidiary Guarantor may purchase businesses be liquidated or dissolved if the Company decides in the lines exercise of business conducted by the Borrowers which Borrowers have determined, in their its reasonable business judgment, would enhance the business, operations, prospects and condition (financial judgment that such liquidation or otherwise) of the Borrowers dissolution is desirable provided that each of the following conditions are satisfied: (a) such dissolution shall not more than $5,000,000, or such greater amount as allowed under the Working Capital Facility, per fiscal year of Borrowers shall be paid in cash and/or incurred Indebtedness by Borrowers in respect of all acquisitions and/or investments made in any such fiscal year; have a Material Adverse Effect and (b) prior to entering into upon such dissolution any agreement or undertaking with respect to any such acquisition or investment, Borrowers shall prepare and submit to Lender pro forma balance sheets and income statements for the entity to be acquired and consolidated with the Borrowers demonstrating to the satisfaction all of Lender continuing compliance with all the covenants in Section 6.3 for the next twelve (12) fiscal months; (c) the Borrowers shall furnish to the Lender notice and copies of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and allow Lender and its representatives reasonable access to financial information and the assets and Properties Property of such Subsidiary Guarantor shall be distributed to be acquired. The Lender agrees to enter into confidentiality agreements with the Persons that Borrower(s) or Subsidiary Guarantor(s) which own(s) the capital stock of such Subsidiary Guarantor;
(iii) any Borrower may acquire on terms mutually agreeable a new Subsidiary, or merge or consolidate with another Person, as part of any Permitted Acquisition transaction provided that (a) in the case of any Permitted Acquisition transaction which involves the purchase of the capital stock or equity interests of another Person but does not involve a merger or consolidation, such Borrower shall pledge the capital stock or equity interests of such acquired Person to the Agent for the ratable benefit of the Lenders pursuant to the Pledge Agreement and the acquired Person shall become a party to this Agreement as a Subsidiary Borrowing Corporation by executing a Joinder Agreement in form and substance acceptable to Lender or (b) in the case of any Permitted Acquisition transaction which involves a merger of the acquired Person with such Borrower, such Borrower shall be the surviving entity; and
(iv) any Borrower may create a new Subsidiary provided that such Borrower shall pledge the capital stock or equity interests of such newly-created Subsidiary to the Agent for the ratable benefit of the Lenders pursuant to the Pledge Agreement and such Personthe newly-created Subsidiary shall become a party to this Agreement as a Subsidiary Borrowing Corporation by executing a Joinder Agreement to Lender in form and substance acceptable to Lender.
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Samples: Loan and Security Agreement (Gentiva Health Services Inc)