Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company or into, with or to any other wholly-owned Subsidiary; (b) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any wholly- owned Subsidiary; (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) are for use, or such Person (in the case of a stock purchase) is engaged in business activities permitted under Section 10.19; (2) immediately before or after giving effect to such purchase or acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; (3) either (i) (x) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition (or any series of related acquisitions) is not greater than $25,000,000 and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater than $10,000,000 or (ii) the Required Banks have consented to such purchase or acquisition; (4) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and (5) immediately after giving effect to such purchase or acquisition, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings and (e) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,000.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class ofAcquisition, or any partnership or joint venture interest in, any other Person, or (b) sell, transfer, convey or lease all or any substantial or material part of its assetsassets or Capital Securities (including the sale of Capital Securities of any Subsidiary) except for sales of inventory, excess equipment, and obsolete equipment in the ordinary course of business, or (c) sell or assign with or without recourse any receivablesAccounts, trademarks, patents, or source codes to any software, except for (ai) any such merger or merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any whollyWholly-owned Owned Subsidiary into the Company or into, with or to any other wholly-owned SubsidiaryCompany; and (bii) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock Capital Securities of any wholly- owned Wholly-Owned Subsidiary; , and (c) the acquisition of the BioGro Companies; (diii) any such purchase or other acquisition Acquisition by the Company where:
(A) the business or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) division acquired are for use, or such the Person (acquired is engaged, in the case of a stock purchase) is businesses engaged in business activities permitted under Section 10.19; by the Loan Parties or businesses reasonably related thereto;
(2B) at the time of the consummation of such Acquisition, the Administrative Agent shall have received certificate from a Senior Officer certifying that immediately before or and after giving effect to such purchase or acquisitionAcquisition, no Event of Default or Unmatured Event of Default shall exist or is reasonably likely to occur as a result of such Acquisition together with a pro forma Compliance Certificate for the next two consecutive fiscal quarters (including the fiscal quarter in which the Acquisition occurs);
(C) in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(D) prior to such Acquisition, the Administrative Agent shall have occurred received current drafts of each material document, instrument and agreement to be continuingexecuted in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired, and promptly after the closing of such Acquisition fully-executed and complete copies of all such documents;
(E) for each Acquisition, not less than ten Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), Uniform Commercial Code, tax and judgment searches from the appropriate jurisdictions, the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto and the delivery of a pro-forma consolidated balance sheet and income statement adjusted after giving effect to the consummation of the proposed Acquisition;
(F) simultaneously with the closing of such Acquisition, the target company (if such Acquisition is structured as a purchase of equity) or the Loan Party (if such Acquisition is structured as a purchase of assets or a merger and a Loan Party is the surviving entity) executes and delivers to Administrative Agent (a) such documents, and other agreement, necessary to grant to Administrative Agent for the benefit of the Lenders a first priority Lien (subject to Permitted Liens) in all of the assets of such target company or surviving company, and their respective Subsidiaries, each in form and substance satisfactory to Administrative Agent and (b) an unlimited guaranty of the Obligations, or at the option of Administrative Agent in Administrative Agent’s absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company, and their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations and (c) a collateral assignment by the Loan Party of rights in favor of Administrative Agent with respect to the Acquisition Documents for such Acquisition (consented to by the seller in such Acquisition) and the Administrative Agent and the Lenders shall be permitted to rely on the legal opinions delivered by such Loan Party in connection with such Acquisition;
(G) if the Acquisition is structured as a merger, the Company or a Grantor (as such term is defined in the Guaranty and Collateral Agreement) is the surviving entity;
(H) the provisions of Section 10.12 have been satisfied; and
(3) either (i) (xI) the aggregate consideration to be paid by the Company and its Subsidiaries Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP, the fair market value of any non-cash consideration, and any earn-outs or deferred purchase price payments to be calculated in accordance with GAAP) in connection with such purchase or other acquisition Acquisition (or any series of related acquisitions) is not greater than $25,000,000 Acquisitions), together with all fees and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries expenses incurred in connection with such purchase or acquisition (or any series of related acquisitions) is not greater than $10,000,000 or (ii) the Required Banks have consented to such purchase or acquisition; (4) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and (5) immediately after giving effect to such purchase or acquisition, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings and (e) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,00025,000,000 per calendar year for all Acquisitions during such calendar year.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or (except for the sale or lease of Inventory in the ordinary course of business) sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company or into, with or to any other wholly-owned Subsidiary; (b) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any wholly- wholly-owned Subsidiary; (c) the acquisition of the BioGro CompaniesXxxxxxxx Acquisition; (d) any such purchase or other acquisition Acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such the assets (in the case of an asset purchase) acquired are for useuse in, or such the Person (in the case of a stock purchase) acquired is engaged in in, business activities permitted under Section 10.1910.18; (2) immediately before or after giving effect to such purchase or acquisitionAcquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; (3) either the Senior Leverage Ratio as of the end of the two Fiscal Quarters ended on or immediately prior to the date of such Acquisition was less than 1.50 to 1.0; (i) (x4) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP, but excluding any common stock of the Parent) in connection with (x) such purchase or other acquisition Acquisition (or any series of related acquisitionsAcquisitions) is does not greater than exceed $25,000,000 3,000,000 and (y) all Acquisitions made after the aggregate consideration Effective Date does not exceed $5,000,000; (5) after giving effect to be paid in cash or by the assumption or issuance of Debt by such Acquisition, the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater than $10,000,000 or (ii) the Required Banks have consented to such purchase or acquisition; (4) the Company is will be in pro forma compliance with all of the financial ratios and restrictions set forth in Section 10.6; and (56) immediately after giving effect to such purchase or acquisitionAcquisition, the Revolving Commitment Availability is at least $2,000,000 10,000,000 greater than the Revolving Outstandings and Outstandings; (e) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,000.; and (f) Investments permitted by Section 10.19(m). 53 10.11
Appears in 1 contract
Samples: Credit Agreement (Middleby Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary ------------------------------ to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or or, except in the ordinary course of its business (including sales of equipment consistent with industry practice), sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company or into, with or to any other wholly-owned Subsidiary; (b) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any wholly- wholly-owned Subsidiary; (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) are for use, or such Person (in the case of a stock purchase) is engaged engaged, solely in business activities permitted under Section 10.19the equipment rental and related businesses; (2) immediately before or after giving effect to such purchase or acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; and (3) either (i) (x) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition (or any series of related acquisitions) is not greater than $25,000,000 and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater less than $10,000,000 or (ii) the Required Banks have consented to such purchase or acquisition; (4x) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; 10.6 and (5y) immediately unless after ------------ giving effect to such purchase or acquisitionacquisition the pro forma Funded Debt to Cash --- ----- Flow Ratio will be less than 1.25 to 1.0, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings Required Lenders have consented to such purchase or acquisition; and (ed) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,0005% of the net book value of the consolidated assets of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company or into, with or to any other wholly-owned Subsidiary; (b) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any wholly- wholly-owned Subsidiary; (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) are for use, or such Person (in the case of a stock purchase) is engaged in the processing, collection, handling and disposal of non-hazardous liquid or solid waste or similar non-hazardous waste-related business activities permitted under Section 10.19activities; (2) immediately before or after giving effect to such purchase or acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; (3) either (i) (x) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition (or any series of related acquisitions) is not greater than $25,000,000 10,000,000 and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater than $10,000,000 7,000,000 or (ii) the Required Banks have consented to such purchase or acquisition; and (4) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and (5) immediately after giving effect to such purchase or acquisition, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings and (ed) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,000750,000.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or or, except in the ordinary course of its business, sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any whollyWholly-owned Owned Subsidiary into the Company or into, with or to any other whollyWholly-owned Owned Subsidiary; (b) any such purchase or other acquisition by the Company or any whollyWholly-owned Owned Subsidiary of the assets or stock of any wholly- owned Wholly-Owned Subsidiary; (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition Acquisition by the Company or any whollyWholly-owned Owned Subsidiary of the assets or stock of any other Person where (1) such the assets acquired (in the case of an asset purchase) are for use, or such the Person acquired (in the case of a stock purchaseany other Acquisition) is engaged engaged, solely in business activities the businesses permitted under Section 10.1910.5(a); (2) immediately before or and after giving effect to such purchase or acquisitionAcquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuingexist; (3) either (i) (x) the aggregate consideration paid (or to be paid paid) by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition each Acquisition (or any series of related acquisitionsAcquisitions) (w) of the assets or stock of any Person engaged in any Gas Related Business is not greater less than $25,000,000 and (yx) of the assets or stock of any Person that is engaged in any Non-Gas Related Business is less than $10,000,000 and the aggregate consideration paid (or to be paid in cash or by the assumption or issuance of Debt paid) by the Company and its Subsidiaries Subsidiaries, determined as aforesaid, for all Acquisitions conducted from and after the Closing Date (y) of the assets or stock of any Person that is engaged in connection with such purchase or acquisition (or any series of related acquisitions) Gas Related Business is not greater less than $10,000,000 50,000,000 and (z) of the assets or (ii) the Required Banks have consented to such purchase or acquisitionstock of any Person that is engaged in any Non-Gas Related Business is less than $20,000,000; (4) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and (5) immediately after giving effect to such purchase or acquisitionin the case of the Acquisition of any Person, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings Board of Directors of such Person has approved such Acquisition; and (ed) sales and dispositions of assets (including the stock of Subsidiaries) for at least fair market value (as reasonably determined by the Board of Directors of the Company), so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,0005% of the net book value of the consolidated assets of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year, except to the extent the proceeds of such sales or dispositions are used to purchase comparable replacement assets within 180 days following the date of such sale or disposition (or in the event within 180 days following the date of such sale or disposition the Company has entered into a binding purchase order or contract for such purchase, within 360 days).
Appears in 1 contract
Samples: Credit Agreement (Semco Energy Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or or, except in the ordinary course of its business, sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any whollyWholly-owned Owned Subsidiary into the Company or into, with or to any other whollyWholly-owned Owned Subsidiary; (b) any such purchase or other acquisition by the Company or any whollyWholly-owned Owned Subsidiary of the assets or stock of any wholly- owned Wholly-Owned Subsidiary; (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition Acquisition by the Company or any whollyWholly-owned Owned Subsidiary of the assets or stock of any other Person a Gas Related Business where (1) such the assets acquired (in the case of an asset purchase) are for use, or such the Person acquired (in the case of a stock purchaseany other Acquisition) is engaged engaged, solely in business activities the businesses permitted under Section 10.1910.5(a); (2) immediately before or and after giving effect to such purchase or acquisitionAcquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuingexist; (3) either (i) (x) the aggregate consideration paid (or to be paid paid) by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition each Acquisition (or any series of related acquisitionsAcquisitions) is shall not greater than exceed $15,000,000, and shall not exceed $50,000,000 in total for all Acquisitions from the Closing Date until the Line of Credit Termination Date, provided, however, that the limitations on such consideration specified under this Section 10.11 shall increase to $25,000,000 and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by $100,000,000, respectively, upon the Company receiving senior unsecured debt ratings of BBB- and its Subsidiaries in connection with such purchase Baa3 or acquisition (or any series of related acquisitions) is not greater than $10,000,000 or (ii) the Required Banks have consented to such purchase or acquisitionbetter from S&P and Xxxxx’x, respectively; (4) immediately after giving effect to such Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and (5) immediately after giving effect to such purchase or acquisitionin the case of the Acquisition of any Person, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings Board of Directors of such Person has approved such Acquisition; and (e6) the Company has delivered to Agent and the Banks, as soon as possible, but no later than Five Business Days prior to the consummation of the Acquisition, copies of the proposed draft acquisition documents, the lien searches, the acquisition summary, pro forma operating income calculations and such other information as Agent and any Bank may reasonably request, acceptable, in each case, to Agent and the Required Banks; and (d) sales and dispositions of assets (including the stock of Subsidiaries) for at least fair market value (as reasonably determined by the Board of Directors of the Company), so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed 5% of the net book value of the consolidated assets of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year, except to the extent the proceeds of such sales or dispositions are used to purchase comparable replacement assets within 180 days following the date of such sale or disposition (or in the event within 180 days following the date of such sale or disposition the Company has entered into a binding purchase order or contract for such purchase, within 360 days); provided, however, (x) that the APC Sale is permitted subject to compliance with the following conditions: (1) the proceeds of the APC Sale shall be at least $500,00090,000,000 (net of all reasonable, usual and ordinary transaction costs), (2) at least $60,000,000 of the proceeds of the APC Sale shall be used, by March 31, 2005, to prepay Funded Debt of the Company, such that the aggregate amount of Funded Debt prepaid from the proceeds of the issuance of both tranches of the Series B Preference Stock of the Company and the APC Sale shall total at least $90,000,000, and (3) no Default or Event of Default shall have occurred and be continuing at the time of the consummation of the APC Sale and (y) the EnStructure Sale is permitted subject to compliance with the requirements relating to the EnStructure Sale proceeds as specified in Section 10.30 of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Semco Energy Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, or (b) sell, transfer, convey or lease all or any substantial part of its personal assets or Capital Securities (including the sale of Capital Securities of any Subsidiary) except for sales of inventory in the ordinary course of business, sales of obsolete or unusable assets, the granting of Permitted Liens, or as otherwise permitted by Section 11.10 (provided, however, that the Company may issue new Capital Securities), or (c) sell or assign with or without recourse any receivables, except for receivables sold for collection in the ordinary course of business; provided, however, that subsection (a), above, shall not apply to (i) any such merger or merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any whollyWholly-owned Owned Subsidiary into the Company or into, with or to into any other whollydomestic Wholly-owned Owned Subsidiary; (bii) any such purchase or other acquisition by the Company or any whollydomestic Wholly-owned Owned Subsidiary of the assets or stock Capital Securities of any wholly- owned Wholly-Owned Subsidiary; and (c) the acquisition of the BioGro Companies; (diii) any such purchase or other acquisition Acquisition by the Company or any whollydomestic Wholly-owned Owned Subsidiary of (each a “Permitted Acquisition”) where:
(A) the assets business or stock of any other Person where (1) such assets (in the case of an asset purchase) division acquired are for use, or such the Person (acquired is engaged, in the case of a stock purchase) is same as, or related to, the businesses engaged in business activities permitted under Section 10.19; by the Loan Parties on the Closing Date;
(2B) immediately before or and after giving effect to such purchase Acquisition, Revolving Loan Availability is greater than or acquisitionequal to $10,000,000;
(C) immediately before and after giving effect to such Acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; exist;
(3) either (i) (xD) the aggregate consideration to be paid by the Company and its Subsidiaries (including any related Acquired Debt assumed or Debt issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with each such purchase or other acquisition Acquisition does not exceed $50,000,000;
(or any series of related acquisitionsE) is not greater than $25,000,000 and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater than $10,000,000 or (ii) the Required Banks have consented immediately after giving effect to such purchase or acquisition; (4) Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and 11.14;
(5F) immediately after giving effect in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(G) reasonably prior to such purchase or acquisitionAcquisition, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and (e) sales agreement to be executed in connection with such Acquisition together with all lien search reports and dispositions of assets (including the stock of Subsidiaries) so long lien release letters and other documents as the net book value Administrative Agent may require to evidence the termination of all assets sold or otherwise disposed of in any Fiscal Year Liens (other than sales Permitted Liens) on the assets or business to be acquired;
(H) not less than ten Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of transportation the proposed Acquisition, and spreading equipmentthe Company’s calculation of pro forma EBITDA relating thereto;
(I) does the Administrative Agent and Required Lenders shall have approved (which approval will not exceed $500,000be unreasonably withheld) the Company’s computation of pro forma EBITDA;
(J) consents have been obtained in favor of the Administrative Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Company and its Subsidiaries and (if delivered to the Company and its Subsidiaries) the selling party in favor of the Administrative Agent and the Lenders have been delivered;
(K) the provisions of Section 10.9 have been satisfied; and
(L) simultaneously with the closing of such Acquisition, to the extent the target company or surviving company meets the definition of a Material Subsidiary, the target company (if such Acquisition is structured as a purchase of equity) or the Company or Subsidiary (if such Acquisition is structured as a purchase of assets or a merger and the Company or a Subsidiary is the surviving entity) executes and delivers to Administrative Agent (a) such documents necessary to grant to Administrative Agent for the benefit of the Lenders a first priority Lien in all of the personal assets of such target company or surviving company, and their respective Subsidiaries, each in form and substance satisfactory to Administrative Agent and (b) an unlimited Guaranty of the Obligations, or at the option of Administrative Agent in Administrative Agent’s absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company, and their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations.
Appears in 1 contract
Samples: Credit Agreement (Multi Color Corp)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary other Loan Party to, (a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock Capital Securities of any class of, or any partnership or joint venture interest in, any other Person, or (b) sell, transfer, convey or lease all or any substantial part of its assetsassets or Capital Securities (including the sale of Capital Securities of any Subsidiary) except for sales of inventory in the ordinary course of business, or (c) sell or assign with or without recourse any receivables, except for (ai) any such merger or merger, consolidation, sale, transfer, conveyance, lease or assignment of or by any whollyWholly-owned Owned Subsidiary into the Company or into, with or to into any other whollydomestic Wholly-owned Owned Subsidiary; (bii) any such purchase or other acquisition by the Company or any whollydomestic Wholly-owned Owned Subsidiary of the assets or stock Capital Securities of any wholly- owned Wholly-Owned Subsidiary; and (c) the acquisition of the BioGro Companies; (diii) any such purchase or other acquisition Acquisition by the Company or any whollydomestic Wholly-owned Owned Subsidiary of where:
(A) the assets business or stock of any other Person where (1) such assets (division acquired is in the case of an asset purchase) are for use, consulting or such Person professional service business;
(in the case of a stock purchase) is engaged in business activities permitted under Section 10.19; (2B) immediately before or and after giving effect to such purchase or acquisitionAcquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; exist;
(3) either (i) (xC) the aggregate consideration to be paid debt utilized by the Company and its Subsidiaries Loan Parties (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition Acquisition (or any series of related acquisitionsAcquisitions) is not greater less than $25,000,000 and 30,000,000.00;
(yD) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater than $10,000,000 or (ii) the Required Banks have consented immediately after giving effect to such purchase or acquisition; (4) Acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and 11.12;
(5E) immediately after giving effect in the case of the Acquisition of any Person, the board of directors or similar governing body of such Person has approved such Acquisition;
(F) reasonably prior to such purchase or acquisitionAcquisition, the Revolving Commitment Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may reasonably require to evidence the termination of Liens on the assets or business to be acquired;
(G) not less than ten Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of pro forma EBITDA relating thereto;
(H) the Administrative Agent shall have approved the Company’s computation of pro forma EBITDA, which approval shall not be unreasonably withheld or delayed;
(I) simultaneously with the closing of such Acquisition, the target company (if such Acquisition is at least $2,000,000 greater than structured as a purchase of equity) or the Revolving Outstandings and Loan Party (e) sales and dispositions if such Acquisition is structured as a purchase of assets or a merger and a Loan Party is the surviving entity) executes and delivers to Administrative Agent an unlimited Guaranty of the Obligations, or at the option of Administrative Agent in Administrative Agent's absolute discretion, a joinder agreement satisfactory to Administrative Agent in which such target company or surviving company, and their respective Subsidiaries becomes a borrower under this Agreement and assumes primary, joint and several liability for the Obligations; and
(including J) if the stock of Subsidiaries) so long Acquisition is structured as a merger, the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,000Company is the surviving entity.
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Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any whollyWholly-owned Owned Subsidiary into the Company or into, with or to any other whollyWholly-owned Owned Subsidiary; (b) any such purchase or other acquisition by the Company or any whollyWholly-owned Owned Subsidiary of the assets or stock of any wholly- owned Wholly-Owned Subsidiary; and (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) are for use, or such Person (in the case of a stock purchase) is is, or after the acquisition will be, engaged in the business activities permitted under by Section 10.196.20; (2) immediately before or after giving effect to such purchase or acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; (3) either (i) (x) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition after the date hereof (or any series of related acquisitions) is not greater less than $25,000,000 and (y) the aggregate consideration to be paid in cash 3,000,000 for any single transaction or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater transactions and less than $10,000,000 or (ii) in the Required Banks have consented to aggregate for all such purchase or acquisitiontransactions; (4) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.66.8; and (5) immediately after giving effect the proceeds of any of the Loans hereunder are not used to finance such purchase or acquisitiontransactions. Notwithstanding the foregoing, the Revolving Commitment is at least $2,000,000 greater than Company shall not, and shall not permit any Subsidiary to, consummate any such merger, consolidation or purchase described above within the Revolving Outstandings and (e) sales and dispositions 120 days immediately following the Closing Date without the prior written consent of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (Lender other than sales of transportation and spreading equipment) does not exceed $500,000Future Acquisitions approved by the Lender.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Synagro Technologies Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company or into, with or to any other wholly-owned Subsidiary; (b) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any wholly- wholly-owned Subsidiary; (c) the acquisition of the BioGro Acquired Companies; (d) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) are for use, or such Person (in the case of a stock purchase) is engaged in business activities permitted under Section 10.19; (2) immediately before or after giving effect to such purchase or acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; (3) either (i) (x) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition (or any series of related acquisitions) is not greater than $25,000,000 15,000,000 and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater than $10,000,000 5,000,000 or (ii) the Required Banks have consented to such purchase or acquisition; (4) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and (5) immediately after giving effect to such purchase or acquisition, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings and (e) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does the proceeds of which do not exceed $500,000. Notwithstanding the foregoing, the Company shall not, and shall not permit any Subsidiary to, consummate any such merger, consolidation or purchase described above within the 120 days immediately following the Effective Date without the prior written consent of all Banks, other than the acquisition of any Acquired Company.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary ------------------------------ to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or or, except in the ordinary course of its business (including sales of equipment consistent with industry practice), sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company or into, with or to any other wholly-owned Subsidiary; (b) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any wholly- wholly-owned Subsidiary; (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) are for use, or such Person (in the case of a stock purchase) is engaged engaged, solely in business activities permitted under Section 10.19the equipment rental and related businesses; (2) immediately before or and after giving effect to such purchase or acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; and (3) either (i) (x) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition (or any series of related acquisitions) is not greater than $25,000,000 and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater less than $10,000,000 or (ii) the Required Banks have consented to such purchase or acquisition; (4x) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; 10.6 and (5y) immediately unless after ------------ giving effect to such purchase or acquisitionacquisition the pro forma Funded Debt to Cash --- ----- Flow Ratio will be less than 1.25 to 1.0, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings Required Lenders have consented to such purchase or acquisition; and (ed) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,0005% of the net book value of the consolidated assets of the Company and its Subsidiaries as of the last day of the preceding Fiscal Year.
Appears in 1 contract
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any whollyWholly-owned Owned Subsidiary into the Company or into, with or to any other whollyWholly-owned Owned Subsidiary; (b) any such purchase or other acquisition by the Company or any whollyWholly-owned Owned Subsidiary of the assets or stock of any wholly- owned Wholly-Owned Subsidiary; and (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) are for use, or such Person (in the case of a stock purchase) is is, or after the acquisition will be, engaged in the business activities permitted under by Section 10.196.20; (2) immediately before or after giving effect to such purchase or acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; (3) either (i) (x) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition after the date hereof (or any series of related acquisitions) is not greater less than $25,000,000 and (y) the aggregate consideration to be paid in cash 10,000,000 for any single transaction or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater transactions and less than $10,000,000 or (ii) 50,000,000 in the Required Banks have consented to aggregate for all such purchase or acquisitiontransactions; (4) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.66.8; and (5) immediately after giving effect the proceeds of any of the Loans hereunder are not used to finance such purchase or acquisition, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings and (e) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,000transactions.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Synagro Technologies Inc)
Mergers, Consolidations, Sales. Not, and not permit any Subsidiary to, be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, convey or lease all or any substantial part of its assets, or sell or assign with or without recourse any receivables, except for (a) any such merger or consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned Subsidiary into the Company or into, with or to any other wholly-owned Subsidiary; (b) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any wholly- owned Subsidiary; (c) the acquisition of the BioGro Companies; (d) any such purchase or other acquisition by the Company or any wholly-owned Subsidiary of the assets or stock of any other Person where (1) such assets (in the case of an asset purchase) are for use, or such Person (in the case of a stock purchase) is engaged engaged, solely in business activities permitted under Section 10.19providing towing services and/or vehicle transport; (2) immediately before or after giving effect to such purchase or acquisition, no Event of Default or Unmatured Event of Default shall have occurred and be continuing; (3) either (i) (x) the aggregate consideration to be paid by the Company and its Subsidiaries (including any Debt assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with such purchase or other acquisition (or any series of related acquisitions) is not greater than $25,000,000 5,000,000 and (y) the aggregate consideration to be paid in cash or by the assumption or issuance of Debt by the Company and its Subsidiaries in connection with such purchase or acquisition (or any series of related acquisitions) is not greater than $10,000,000 or 2,500,000, (ii) immediately after giving effect to such purchase or acquisition, the Funded Debt to EBITDA Ratio is less than 1.0 to 1.0 or (iii) the Required Banks Lenders have consented to such purchase or acquisition; (4) the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 10.6; and (5) immediately after giving effect to such purchase Person (or acquisition, the Revolving Commitment is at least $2,000,000 greater than the Revolving Outstandings its board of directors or similar body) has approved such acquisition or other purchase; and (ed) sales and dispositions of assets (including the stock of Subsidiaries) so long as the net book value of all assets sold or otherwise disposed of in any Fiscal Year (other than sales of transportation and spreading equipment) does not exceed $500,0005% of the aggregate net book value of all assets of the Company and its Subsidiaries.
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