Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and shall not permit any Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that: (1) any Subsidiary of a Borrower may consolidate, liquidate or merge into the applicable Borrower so long as such Borrower is the surviving entity of such consolidation, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing, (2) pursuant to a Permitted Acquisition, a Loan Party (other than Parent) may (X) acquire substantially all of the assets of another Person or of a business or division of another Person or (Y) consummate a bulk purchase of Recurring Service Contracts, provided that each of the following requirements is met: (A) such Loan Party shall grant Liens in the assets acquired in such acquisition and otherwise comply with Section 10.18 on or before the date of such Permitted Acquisition; (B) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition; (C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10; (D) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition; (E) the Loan Parties shall demonstrate that they shall be in compliance with the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 evidencing such compliance; (F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000; (G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and (H) the Loan Parties shall deliver to Agent at least five (5) Business Days before such Permitted Acquisition drafts of any agreements entered into or proposed to be entered into by such Loan Parties in connection with such Permitted Acquisition, together with due diligence reports received or prepared by or for the Loan Parties, and shall deliver to Agent such other information about such Person or its assets as any Bank may reasonably require; and (3) the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretion.
Appears in 2 contracts
Samples: Credit Agreement (Interface Security Systems, L.L.C.), Credit Agreement (Interface Security Systems Holdings Inc)
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties Borrower shall not, and nor shall not it permit Guarantor or any Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise any security alarm contracts or all or substantially all of the assets or capital stock of any other Person, provided that:
(1a) any Subsidiary of a Borrower NewCo may consolidate, liquidate or merge into the applicable Borrower so long as such Borrower is the surviving entity of such consolidation, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant to a Permitted Acquisition, a Loan Party (other than Parent) may (X) acquire substantially all of the assets of another Person or of a business or division of another Person or (Y) consummate a bulk purchase of Recurring Service ContractsSecurity Alarm Contracts (each a “Permitted Acquisition”), provided that each of the following requirements is met:
(A1) such Loan Party Such assets shall be acquired for cash and NewCo shall grant Liens in the assets acquired a Prior Security Interest in such acquisition and otherwise comply with Section 10.18 assets in favor of the Agent for the benefit of the Lenders on or before the date of such Permitted Acquisition;
(B2) the Board governing bodies of Directors or other equivalent such Person and NewCo shall have approved such Permitted Acquisition and NewCo shall have delivered to Agent written evidence of the approval of such governing body of NewCo and such Person shall have approved for such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(D3) no Potential Default or Event of Default shall exist immediately prior to and or after giving effect to such Permitted Acquisition;
(E4) the Loan Parties shall demonstrate that they Borrower shall be in compliance with the covenants contained in Sections 7.2.15Section 7.2.15 [Capital Expenditures and Leases], 7.2.16Section 7.2.16 [Minimum Cash Receipts], and Section 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in [Minimum Fixed Charge Coverage Ratio], Section 7.2.18 calculated as of the date of the acquisition[ Senior Funded Debt to EBITDA Ratio ] and Section 7.2.20 [Maximum Attrition Rate], all in each case after giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred (subject to the restriction that all such assets must be purchased in cash) in connection with such Permitted Acquisition and including RMRAcquisition, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) ), by delivering at least five (5) 5 Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 evidencing such compliance;
(F5) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(H) the Loan Parties Borrower shall deliver to Agent at least five (5) 5 Business Days before such Permitted Acquisition drafts copies of any agreements entered into or proposed to be entered into by such Loan Parties NewCo in connection with such Permitted Acquisition, together including a purchase agreement demonstrating that the purchase price shall be paid in cash and with due diligence reports received or prepared by or other terms customary for the Loan Partiessecurity alarm industry, including an account guaranty, a purchase price holdback, and appropriate nonsolicitation provisions, an assignment and xxxx of sale (in a form reasonably acceptable to Agent), and a fully-executed Assignment and Modification Agreement with the Approved Central Station(s) that monitor the customers included in the Permitted Acquisition, and shall deliver to Agent such other information about such Person or its assets as any Bank Lender may reasonably require;
(6) if the seller will remain in business and will provide on-going services to the acquired customers, then NewCo shall enter into a service agreement with seller on terms customary for the security alarm industry, including appropriate nonsolicitation provisions, a right of first refusal, and a consent to collateral assignment to Agent; provided, however that Borrower shall cause any acquired Security Alarm Contracts to be transferred to CastleRock for servicing within 60 days of acquisition.
(7) Borrower shall perform reasonable due diligence on not less than the lesser of (a) 25% or (b) 500 of all security alarm customer contracts to be acquired;
(8) Each acquired customer evidenced by a Security Alarm Contract must have an Approved Credit Score greater than 625;
(9) Not more than 10% of any acquired Security Alarm Contracts shall be Security Alarm Contracts originated through a “Summer Program”; and
(310) The acquired Security Alarm Contracts must (i) have a minimum original term of not less than thirty-six (36) months with an automatic renewal provision providing for a minimum renewal period of 12 months following the Loan Parties expiration of the then-current term; and (ii) be in full force and effect, with no defaults or late payments for a period of at least six (6) consecutive months immediately prior to the acquisition date.
(b) subject to Section 7.2.21 [Dealer Programs], NewCo may consummate acquire customer accounts through a Dealer Program. Borrower agrees to perform reasonable due diligence on not less than of all security alarm customer contracts (or such other acquisition or RMR purchase transactions involving Permitted Businesses lesser amount as may be approved subject to the acquisition) to be acquired pursuant to this clause (b).
(c) Subject to Section 7.2.9 [Subsidiaries, Partnerships and Joint Ventures], Permitted Subsidiaries may acquire Security Alarm Contracts by Required Banks bulk purchase.
(d) For the avoidance of doubt, in their sole discretion.no event shall Borrower be permitted to make Permitted Acquisitions unless the Equity Raise has occurred and the Restricted Proceeds and the Remaining Proceeds have been deposited in accordance with Section 2A.2(c) [Restricted Proceeds; Updated Appraisals]”
(q) Section 7.2.8 [Affiliate Transactions] of the Credit Agreement is hereby amended and restated to read as follows:
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (CastleRock Security Holdings, Inc.)
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and shall not permit any Subsidiary of its Subsidiaries (other than Immaterial Subsidiaries) to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, Person other than dispositions of assets or Subsidiaries permitted under Section 7.2.7 [Dispositions of Assets or Subsidiaries]; provided that:
(1i) (A) any Loan Party and any Subsidiary of a Borrower may consolidate, liquidate or merge into the applicable Borrower so long as such Borrower is the surviving entity of such consolidation, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant to a Permitted Acquisition, a Loan Party (other than Parentthe Borrowers) may consolidate or merge into another Loan Party, and (XB) acquire any Subsidiary of the Parent Company that is not a Loan Party may consolidate or merge into a Loan Party or another Subsidiary of the Parent Company that is not a Loan Party, and
(ii) any Loan Party or any Subsidiary thereof may acquire, whether by purchase or by merger, (A) all of the ownership interests of another Person or (B) substantially all of the assets of another Person or of a business or division of another Person or (Yeach, a “Permitted Acquisition”) consummate a bulk purchase of Recurring Service Contracts, provided that each of the following requirements is metmet for each Permitted Acquisition:
(Aa) if such Loan Party shall grant Liens in or Subsidiary is acquiring the assets acquired ownership interests in such acquisition and otherwise Person, such Person shall comply with the requirements of Section 10.18 on or before the date of 7.2.9 [Subsidiaries] promptly following such Permitted Acquisition;
(Bb) the Board business acquired, or the business conducted by the Person whose ownership interests are being acquired shall comply with Section 7.2.10 [Continuation of Directors or other equivalent governing body of such Person shall have approved such Permitted AcquisitionChange in Business];
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(Dc) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(Ed) the Loan Parties Pro Forma Operating Leverage Ratio shall demonstrate that they shall be in compliance with not exceed 3.7 to 1.00 and the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 Borrowers shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of Lender a certificate (in form and substance reasonably acceptable to the Lender) demonstrating such Permitted Acquisition) by delivering compliance, at least five (5) Business Days prior to consummating such Permitted Acquisition a certificate in Acquisition; provided, however, that if the form trailing twelve (12) month EBITDA of Exhibit 7.2.6 evidencing such compliance;
(F) acquired Person, business or division is not available for purposes of calculating the portion Pro Forma Operating Leverage Ratio, the Borrowers shall instead deliver to the Lender within such time period the Parent Company’s projections of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds expected consolidated pro forma EBITDA of the Revolving Credit Loans Borrower, its Subsidiaries and such acquired Person, business or division over the subsequent twelve (as certified by an officer’s certificate from 12) month period, demonstrating that the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out consummation of such Permitted Acquisition (and the consent will not result in a ratio of consolidated Funded Debt of the Person bound thereby shall either have been obtained Borrowers and their Subsidiaries (including any Indebtedness incurred or shall not be required)assumed) to trailing twelve (12) month Consolidated EBITDA that exceeds 3.75 to 1.00; and
(He) the Loan Parties shall deliver to Agent at least five (5) Business Days before such the Lender as soon as available prior to the consummation of a Permitted Acquisition drafts copies of any agreements entered into or proposed to be entered into by such Loan Parties Party or Subsidiary in connection with such Permitted Acquisition, together with due diligence reports received or prepared by or for the Loan Parties, Acquisition and shall deliver to Agent the Lender such other information about such Person or its assets as any Bank Loan Party may reasonably require; and
(3) the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretion.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. Each The Borrower and each of the Loan Parties shall not, and its Subsidiaries shall not permit any Subsidiary to, dissolve, liquidate or wind-up its affairs, affairs or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other PersonPerson (each an “Acquisition”) if the Gross Asset Value of the acquired business or Person shall exceed 30% of the Gross Asset Value of the Borrower and its Subsidiaries (after giving effect to such Acquisition) (each a “Material Acquisition”), provided that:
that (1) the Borrower or its Subsidiary shall be the survivor of any Subsidiary of a Borrower may consolidatesuch merger, liquidate consolidation or merge into the applicable Borrower so long as such Borrower is the surviving entity of such consolidation, liquidation or merger other transaction and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant to the Borrower and its Subsidiaries may enter into a Material Acquisition (each a “Permitted Material Acquisition, a Loan Party (other than Parent”) may (X) acquire substantially all of the assets of another Person or of a business or division of another Person or (Y) consummate a bulk purchase of Recurring Service Contracts, provided that each of if the following requirements is conditions are met:
(Ai) such Loan Party the Material Acquisition shall grant Liens be permitted under and in accordance with the assets acquired in such acquisition and otherwise comply with Section 10.18 on or before the date of such Permitted AcquisitionBorrower’s Private Offering Memorandum;
(B) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(Dii) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Material Acquisition;
(Eiii) the Loan Parties Borrower shall demonstrate that they it shall be in compliance with the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all this Agreement after giving effect to such Permitted Material Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Material Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Material Acquisition) by delivering to the Agent at least five (5) Business Days prior to such Permitted Material Acquisition a certificate pro forma Compliance Certificate in a form acceptable to the form of Exhibit 7.2.6 Agent evidencing such compliance;
(F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(Hiv) the Loan Parties Borrower shall deliver to the Agent at least five (5) Business Days before such Permitted Material Acquisition drafts of any agreements entered into or proposed to be entered into by such Loan Parties in connection with such Permitted Acquisition, together with due diligence reports received or prepared by or for the Loan Parties, and shall deliver to Agent such other information about such acquisition, and the business or Person or its assets to be acquired as any Bank the Agent may reasonably require; and
(3) the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Excelsior Lasalle Property Fund Inc)
Liquidations, Mergers, Consolidations, Acquisitions. Each of the The Loan Parties shall not, and shall not permit any Subsidiary of their Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that:
EXCEPT that (1A) any Subsidiary of a the Borrower may consolidate, liquidate consolidate or merge into the applicable Borrower so long as or any other Loan Party or its Subsidiary, provided that the Loan Parties shall (1) notify the Agent at least 10 Business Days prior to any such Borrower is the surviving entity of such consolidationmerger, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant take all steps necessary or appropriate or reasonably requested by the Agent to cause the successor to grant Liens in of the assets of the merging entity in favor of the Agent for the benefit of the Banks; and that (B) the Loan Parties or a Permitted AcquisitionSubsidiary thereof may merge with or purchase, a Loan Party (other than Parent) may (X) lease or otherwise acquire substantially all of the assets of another Person or of (each a business or division of another Person or (Y"Transaction") consummate a bulk purchase of Recurring Service Contracts, provided that (i) the aggregate consideration paid or given, whether in cash, stock, or other property, and liabilities assumed by the Borrower and its Subsidiaries in all Transactions during each fiscal year of the following requirements is met:
Borrower (Athe "Transaction Consideration") such does not exceed $7,500,000; (ii) the Loan Party shall grant Liens in be the assets surviving Person if the Transaction is a merger to which the Loan Party is a party; (iii) the Loan Parties and the acquired in such acquisition and otherwise business shall comply with Section 10.18 on 7.2.10 [Continuation of or before the date of such Permitted Acquisition;
Change in Business], (Biv) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(D) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(E) the Loan Parties shall demonstrate that they shall be in compliance with the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 evidencing such compliance;
(F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or Transaction there shall not be required)continuing any Event of Default under this Agreement; and
(Hv) the Loan Parties board of directors or equivalent governing officers of the acquired business shall deliver have consented to such transaction, (vi) the Borrower shall notify the Agent at least and the Banks of such Transaction within five (5) Business Days before the date of such Permitted Acquisition drafts of any agreements entered into or proposed to be entered into by Transaction if the Transaction Consideration exceeds $1,000,000 and such Loan Parties in connection with notice shall describe such Permitted AcquisitionTransaction, together with due diligence reports received or prepared by or for the Loan Partiespurpose therefore, the parties thereto, and shall deliver to Agent such other information about such Person or its assets as any Bank may reasonably require; and
the amount and type of the Consideration paid and (3vii) the Loan Parties may consummate and the new Subsidiaries being formed or acquired in connection therewith shall have delivered to the Agent prior to such sale joinders and other acquisition documents described in Section 10.19 required to cause the acquired or RMR purchase transactions involving Permitted Businesses newly formed Subsidiaries to join the Loan Documents as may be approved by Required Banks Guarantors, grant Liens in their sole discretionassets and for their owners to grant Liens in the ownership interests in such Subsidiaries.
Appears in 1 contract
Samples: Credit Agreement (Blair Corp)
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and shall not permit any Subsidiary of its Subsidiaries to, (a) dissolve, liquidate or wind-wind up its affairs, or (b) become a party to any merger or consolidation, (c) acquire (i) a majority of the voting equity interests or acquire by purchaseeconomic interests of another Person, lease or otherwise (ii) all or substantially all of the assets of another Person or capital stock of any a division, line of business or other Person, business unit of another Person or (d) consummate an LLC Division; provided that:
(1i) (A) any Loan Party other than the Borrower may consolidate or merge into, or liquidate into, the Borrower or another Loan Party which is wholly-owned by one or more of the other Loan Parties, (B) any Subsidiary of the Borrower that is not a Loan Party may consolidate or merge into, or liquidate into, the Borrower or any other Subsidiary and (C) any Subsidiary of the Borrower may consolidate, dissolve or liquidate or merge into the applicable Borrower so long as either (1) such Borrower is Subsidiary owns no assets at the surviving entity time of such consolidation, liquidation or merger and such consolidation, liquidation dissolution or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant any assets owned by such Subsidiary are transferred to the Borrower or another Subsidiary prior to such liquidation or dissolution (or if such Subsidiary is a Loan Party, to the Borrower or another Loan Party);
(ii) the Borrower and its Subsidiaries may (each of the following, a “Permitted Acquisition”) (A) consummate the Project Vitality Acquisition on or before December 31, 2020 in compliance with applicable Law and regulatory approvals and in accordance with the terms of the Project Vitality Acquisition Agreement, without giving effect to any modifications, amendments, consents or waivers by the Borrower or its Subsidiaries thereto that are materially adverse to the interests of the Lenders, unless consented to in writing by the Administrative Agent; provided that, concurrently with the closing of the Project Vitality Acquisition, the Loan Parties shall have taken all actions required by Sections 8.1.8 [Pledged Assets] and 8.1.9 [Additional Guarantors] (without giving effect to any permitted post-acquisition time period set forth therein), and (B) acquire, whether by purchase or by merger, (1) all or a Loan Party majority of the ownership interests of another Person, or (other than Parent2) may (X) acquire all or substantially all of the assets of another Person or of a business or division of another Person or (Y) consummate a bulk purchase of Recurring Service ContractsPerson, provided that that, in the case of this clause (B), each of the following requirements is are met:
(Aa) such the Loan Party Parties shall grant Liens have taken all actions required by Sections 8.1.8 [Pledged Assets] and 8.1.9 [Additional Guarantors] within the time frames set forth in Sections 8.1.8 [Pledged Assets] and 8.1.9 [Additional Guarantors];
(b) the assets acquired in such acquisition and otherwise business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall comply with Section 10.18 on 8.2.10 [Continuation of or before the date of such Permitted AcquisitionChange in Business];
(B) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(Dc) no Potential Default or Event of Default shall exist immediately prior to and or after giving effect to such Permitted Acquisition;
(Ed) the Loan Parties shall demonstrate that they Borrower shall be in pro forma compliance with the covenants contained in Sections 7.2.15, 7.2.16, Section 8.2.14 [Maximum Leverage Ratio] and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all 8.2.15 [Minimum Interest Coverage Ratio] after giving pro forma effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition as more fully set forth in the definition of Consolidated EBITDA), in each case, calculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered hereunder pursuant to Section 8.3.1 [Quarterly Financial Statements] or 8.3.2 [Annual Financial Statements];
(e) such Permitted Acquisition is not a Hostile Acquisition;
(f) if the aggregate Consideration paid for any such Permitted Acquisitions exceeds $50,000,000 (each, a “Material Permitted Acquisition”), the Borrower shall demonstrate to the Administrative Agent’s satisfaction of the condition set forth in clause (e) above by completing and delivering at least five (5) Business Days prior to such Permitted Acquisition Acquisition, a certificate in the form of Exhibit 7.2.6 8.2.6 evidencing such compliance;
(F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(Hg) in the Loan Parties case of a Material Permitted Acquisition, the Borrower shall deliver to the Administrative Agent (1) at least five twenty (520) Business Days days before such Permitted Acquisition (or such later date approved by the Administrative Agent), all financial statements received with respect to the Persons or assets proposed to be acquired, (2) at least ten (10) days before such Permitted Acquisition (or such later date approved by the Administrative Agent), drafts of any agreements entered into or proposed to be entered into by such Loan Parties Borrower in connection with such Permitted Acquisition, together and (3) prior to the time of such Permitted Acquisition (or such later date approved by the Administrative Agent), executed copies of such agreements entered into by Borrower in connection with due diligence reports received or prepared by or for the Loan Partiessuch Permitted Acquisition, and shall deliver to the Administrative Agent such other information about such Person or its assets as any Bank Lender may reasonably require; and
(3iii) the Loan Parties Borrower and its Subsidiaries may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretionInvestments permitted under Section 8.2.4 [Investments].
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. Each of the The Loan Parties shall not, and shall not permit any Subsidiary of their Subsidiaries (other than Allegheny Trails Corporation) to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that:
except that (1A) any Subsidiary of a the Borrower may consolidate, liquidate consolidate or merge into the applicable Borrower so long as or any other Loan Party or its Subsidiary, provided that the Loan Parties shall (1) notify the Agent at least 10 Business Days prior to any such Borrower is the surviving entity of such consolidationmerger, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant take all steps necessary or appropriate or reasonably requested by the Agent to cause the successor to grant Liens in of the assets of the merging entity in favor of the Agent for the benefit of the Lenders; and that (B) after the Loan Reduction Date, the Loan Parties or a Permitted AcquisitionSubsidiary thereof may merge with or purchase, a Loan Party (other than Parent) may (X) lease or otherwise acquire substantially all of the assets of another Person or of (each a business or division of another Person or (Y“Transaction”) consummate a bulk purchase of Recurring Service Contracts, provided that (i) the aggregate consideration paid or given, whether in cash, stock, or other property, and liabilities assumed by the Borrower and its Subsidiaries in all Transactions during each fiscal year of the following requirements is met:
Borrower (Athe “Transaction Consideration”) such does not exceed $7,500,000; (ii) the Loan Party shall grant Liens in be the assets surviving Person if the Transaction is a merger to which the Loan Party is a party; (iii) the Loan Parties and the acquired in such acquisition and otherwise business shall comply with Section 10.18 on 8.2.10 [Continuation of or before the date of such Permitted Acquisition;
Change in Business], (Biv) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(D) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(E) the Loan Parties shall demonstrate that they shall be in compliance with the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 evidencing such compliance;
(F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or Transaction there shall not be required)continuing any Event of Default under this Agreement; and
(Hv) the Loan Parties board of directors or equivalent governing officers of the acquired business shall deliver have consented to such transaction, (vi) the Borrower shall notify the Agent at least and the Lenders of such Transaction within five (5) Business Days before the date of such Permitted Acquisition drafts of any agreements entered into or proposed to be entered into by Transaction if the Transaction Consideration exceeds $1,000,000 and such Loan Parties in connection with notice shall describe such Permitted AcquisitionTransaction, together with due diligence reports received or prepared by or for the Loan Partiespurpose therefore, the parties thereto, and shall deliver to Agent such other information about such Person or its assets as any Bank may reasonably require; and
the amount and type of the Consideration paid and (3vii) the Loan Parties may consummate and the new Subsidiaries being formed or acquired in connection therewith shall have delivered to the Agent prior to such sale joinders and other acquisition documents described in Section 11.18 required to cause the acquired or RMR purchase transactions involving Permitted Businesses newly formed Subsidiaries to join the Loan Documents as Guarantors, grant Liens in their assets and for their owners to grant Liens in the ownership interests in such Subsidiaries; and (c) after the World Financial Sale, Xxxxx Credit Services Corporation, Xxxxx Factoring Company and JLB Service Bank may be approved dissolved and wound up and upon the commencement of such dissolution and notification thereof from Borrower to the Agent shall be released from all obligations, if any, as a Loan Party hereunder or with respect to any other Loan Document, as confirmed by Required Banks the Agent without any action on the part of the other Lenders; provided, that if Xxxxx Credit Services Corporation is to be dissolved, the Borrower shall deliver a certification to the Agent that the Loan Parties are and will be in their sole discretioncompliance with the covenant with respect to Xxxxx Credit Services Corporation contained in Section 8.2.18 on and after the date of such dissolution.
Appears in 1 contract
Samples: Credit Agreement (Blair Corp)
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and shall not permit any Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that:
(1) any Subsidiary of a the Borrower may consolidate, liquidate consolidate or merge or liquidate into the applicable Borrower so long as such Borrower is the surviving entity of such consolidationor any Subsidiary, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant to a Permitted Acquisition, except that a Loan Party (other than Parent) may (X) acquire substantially all of the assets of another Person not merge, consolidate or of liquidate into a business or division of another Person or (Y) consummate Subsidiary which is not a bulk purchase of Recurring Service ContractsLoan Party, provided that each of the following requirements is met:and
(Ai) such if the Loan Party shall grant Liens in Parties are acquiring the assets acquired ownership interests in such acquisition Person and otherwise comply with such Person is a Subsidiary which is not a Foreign Subsidiary, such Person shall execute a Guarantor Joinder and join this Agreement as a Guarantor pursuant to Section 10.18 11.18 [Joinder of Guarantors] on or before the date of such Permitted AcquisitionAcquisition if the total consideration in connection with such Permitted Acquisition is $25,000,000 or more and within thirty (30) days after such Permitted Acquisition if the total consideration in connection with such Permitted Acquisition is less than $25,000,000;
(Bii) the Board board of Directors directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition, except in the case of an acquisition of stock of such Person, other than by tender offer, with respect to which the board of directors of such Person have not advised against or disapproved such acquisition;
(Ciii) the business acquired acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be a Recurring Service Contracts substantially the same as one or more line or lines of business conducted by the Loan Parties or Persons in the alarm or Recurring Service Contract business their Subsidiaries and shall otherwise comply with Section 7.2.108.2.10 [Continuation of or Change in Business];
(Div) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;; and
(Ev) for Permitted Acquisitions occurring after August 1, 2000, the Loan Parties Borrower shall demonstrate that they it shall be in pro forma compliance with the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all 8.2 after giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 8.2.6 evidencing ------------- such compliance;. Such computation shall include: -80-
(Fa) EBITDA and other income and expense items and results of operations for a period identical to the portion period of a fiscal quarter or quarters for which financial statements and related compliance certificate were most recently delivered under Section 8.3.1 or 8.3.2, as the case may be, and Section 8.3.3; and
(b) for any Permitted Acquisition, Indebtedness as of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out date of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained including Indebtedness or shall not be required); and
(H) the Loan Parties shall deliver to Agent at least five (5) Business Days before such Permitted Acquisition drafts of any agreements entered into other liabilities assumed or proposed to be entered into by such Loan Parties incurred in connection with such Permitted Acquisition). In connection with calculations of the covenants in Sections 8.2.1 through 8.2.4 and Sections 8.2.17 through 8.2.20, together with due diligence reports received or prepared by or for the Loan Parties, and shall deliver to Agent such other information about such Person or its assets as any Bank may reasonably require; and
(3) the Loan Parties may consummate not include income statement and other cash flow statement items of the acquired Person or business for periods prior to the date of the acquisition unless the Loan Parties have delivered the financial statements of such Person or business (which shall not be older than 135 days prior to the date of such acquisition) and pro forma combined computations of such covenants to the Banks and the Borrower delivers copies of such statements to the Administrative Agent and the Banks together with pro forma combined statements and the Borrower certifies to the Administrative Agent for the benefit of the Banks that it has reviewed such financial statements and either (i) the assets, liabilities, shareholders equity, income and expenses and other acquisition components of such statements are computed consistently with the corresponding items of the Borrower and its Subsidiaries in all material respects, or RMR purchase transactions involving Permitted Businesses as may (ii) to the extent there are differences in such computations that result in covenant levels more favorable (and not less favorable) to Borrower than they would be approved by Required Banks if such differences did not exist, the Borrower shall adjust in their sole discretionits pro forma combined financial statements to eliminate such differences. In connection with calculations of the covenants other than those listed in the preceding sentence, the Loan Parties shall not include income statement and other cash flow statement items of the acquired Person or business for periods prior to the date of the acquisition.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and Borrower shall not permit any Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that:
(1) any Subsidiary of a that Borrower may consolidateacquire, liquidate whether by purchase or merge into by merger, (A) all of the applicable Borrower so long as such Borrower is the surviving entity ownership interests of such consolidation, liquidation another Person or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2B) pursuant to a Permitted Acquisition, a Loan Party (other than Parent) may (X) acquire substantially all of the assets of another Person or of a business or division of another Person or (Yeach an "Permitted Acquisition") consummate a bulk purchase up to an aggregate amount of Recurring Service Contracts$1,000,000, provided that each of the following requirements is met:
(Aa) such Loan Party shall grant Liens in if Borrower is acquiring the assets acquired ownership interests in such acquisition and otherwise comply with Section 10.18 Person, such Person shall execute such documentation as Bank may reasonably require to join this Agreement on or before the date of such Permitted Acquisition;
(Bb) Borrower, such Person and its owners, as applicable, shall grant Liens in the assets of or acquired from and stock or other ownership interests in such Person and execute such documentation as Bank may reasonably require on or before the date of such Permitted Acquisition;
(c) the Board board of Directors directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and, if Borrower shall use any portion of the Revolving Credit Loans to fund such Permitted Acquisition;, Borrower also shall have delivered to Bank written evidence of the approval of the board of directors (or equivalent body) of such Person for such Permitted Acquisition,
(Cd) the business acquired acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be a Recurring Service Contracts substantially the same as one or more line or lines of business conducted by Borrower or Persons in the alarm or Recurring Service Contract business reasonably related thereto and shall otherwise comply with Section 7.2.10;7.2.10 [Continuation of or Change in Business],
(De) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;,
(Ef) the Loan Parties Borrower shall demonstrate that they it shall be in compliance with the covenants contained in Sections 7.2.15, 7.2.16, 7.2.17, 7.2.18 and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all 7.2.19 after giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 G evidencing such compliance;.
(Fg) the portion of the Consideration paid by Borrower for all Permitted Acquisitions made during the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) current fiscal year Borrower shall not exceed $2,000,000 1,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans Borrower for such Permitted Acquisition and all other Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from between the Chief Financial Officer) Closing Date and the date of such Permitted Acquisition shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required)1,000,000; and
(Hh) the Loan Parties Borrower shall deliver to Agent Bank at least five (5) Business Days before after such Permitted Acquisition drafts copies of any agreements entered into or proposed to be entered into by such Loan Parties Borrower in connection with such Permitted Acquisition, together with due diligence reports received or prepared by or for the Loan Parties, Acquisition and shall deliver to Agent Bank such other information about such Person or its assets as any Bank Borrower may reasonably require; and.
(3i) for Permitted Acquisitions in excess of $1,000,000, Borrower must obtain the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretionprior written consent of Bank.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and shall not permit any Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that:
(1) any Subsidiary of a Loan Party other than the Borrower may consolidate, liquidate consolidate or merge into another Loan Party which is wholly-owned by the applicable Borrower so long as such Borrower is the surviving entity of such consolidation, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,Borrower; or
(2) pursuant to a Permitted Acquisition, a Loan Party (other than Parent) the Borrower may (X) acquire by purchase substantially all of the stock of a Franchise or the Franchise assets of another Person or of a business or division of another Person or Franchisee in accordance with the Borrower's established pricing formulas and purchase structure (Ywhich have been provided to the Agent and the Banks prior to the Closing Date) consummate (each such purchase being a bulk purchase of Recurring Service Contracts"Permitted Acquisition"), provided that each of the following requirements is metthat:
(Ai) such Loan Party the Borrower shall grant or cause to exist perfected Liens in favor of the Agent in the assets of or acquired from the seller in such acquisition and otherwise comply with Section 10.18 Permitted Acquisition on or before the date of such Permitted Acquisition;
(B) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(Cii) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business Franchise and such purchase shall otherwise comply with Section 7.2.107.2.10 [Continuation of or Change in Business];
(Diii) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(Eiv) the Loan Parties Borrower shall demonstrate adherence to its established pricing formulas and purchase structure and that they it shall be in compliance with the covenants contained in Sections 7.2.15, 7.2.16, 7.2.17, 7.2.18, 7.2.19, 7.2.20 and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all 7.2.21 after giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisitionacquired) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 8.2.6 evidencing such compliance;
(Fv) the portion of the Consideration paid by the Loan Parties for any one all Permitted Acquisition that constitutes Acquisitions made during the proceeds current fiscal year of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) Loan Parties shall not exceed $2,000,000 12,500,000 per year and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for such Permitted Acquisition and all other Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from between the Chief Financial Officer) Closing Date and the date of such Permitted Acquisition shall not exceed $4,000,00030,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(Hvi) the Loan Parties shall deliver to the Agent (A) at least five (5) Business Days before such Permitted Acquisition drafts (x) copies of any agreements substantially as entered into or proposed to be entered into by such Loan Parties in connection with such Permitted AcquisitionAcquisition and (y) executed complete UCC-1 financing statements suitable for filing and sufficient to perfect the security interest of the Agent on behalf of the Banks in all property acquired in such Permitted Acquisition and (B) promptly after the closing thereof, together with due diligence reports received or prepared by or for evidence satisfactory to the Agent that all Liens have been cancelled and satisfied of record; and
(vii) the Loan Parties, and Parties shall also deliver to the Agent from time to time on demand such other information about such Person or its assets or such Permitted Acquisition as any Bank the Agent may reasonably require; and
(3) the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Party City Corp)
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties The --- --------------------------------------------------- Borrower shall not, and shall not permit any Subsidiary of the other Loan Parties to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Personperson, provided that:
(1i) any wholly owned Subsidiary of a the Borrower may consolidate, liquidate consolidate or merge into the applicable Borrower (so long as such the Borrower is the surviving entity survivor) or any other wholly owned Subsidiary of the Borrower;
(ii) a Subsidiary of the Borrower that is not a Material Subsidiary may be dissolved, liquidated or wound up provided that from the date of this Agreement through the Expiration Date, the total assets of the non- Material Subsidiaries which so dissolve, liquidate or wind up shall not exceed $25,000,000 in the aggregate;
(iii) subject to Section 8.02(w), the Borrower or a Restricted Subsidiary of the Borrower may acquire all of the capital stock of another corporation so long as (u) the assets of such consolidation, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected acquired corporation are pledged to cause the Collateral Agent for the benefit of the Banks on a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) first priority perfected basis pursuant to a Permitted AcquisitionSecurity Agreement, First Mortgage and other Loan Documents, as applicable and such acquired corporation, simultaneous with the acquisition thereof by a Loan Party, executes and delivers to the Administrative Agent for the benefit of the Banks a Guaranty Agreement and to the Collateral Agent for the benefit of the Banks a Pledge Agreement in form and substance satisfactory to the Administrative Agent, and also delivers to the Administrative Agent such opinions of counsel and other documents in connection therewith as the Administrative Agent may reasonably request, (v) all of the issued and outstanding capital stock of such acquired corporation owned by a Loan Party is pledged to the Collateral Agent for the benefit of the Banks pursuant to a Pledge Agreement in form and substance satisfactory to the Administrative Agent, (w) after giving effect to such proposed acquisition, no Event of Default shall have occurred and be continuing, (x) after giving effect to such proposed acquisition (and without limiting the generality of the preceding clause (iii)(w)), the Borrower is in compliance with the Leverage Ratio set forth in Section 8.02(r) and the Borrower demonstrates such compliance pursuant to Section 8.01(m) (if Section 8.01(m) requires such demonstration of compliance), and (y) in the case of a merger involving the Borrower, the Borrower shall be the survivor of such merger, and in the case of a merger involving any Restricted Subsidiary the survivor of such merger shall be either such Restricted Subsidiary or a person which, effective upon consummation of such merger shall have become a Restricted Subsidiary of the Borrower, shall have joined this Agreement and the other Loan Documents as a Loan Party (including, without limitation, execution and delivery of a Guaranty Agreement substantially in the form of Exhibit 1.01(G)), shall have delivered such --------------- opinions of counsel and other than Parentdocuments as the Administrative Agent may reasonably request, whose equity interests shall have been pledged to the Collateral Agent for the benefit of the Banks on a first priority perfected basis pursuant to a Pledge Agreement and whose assets shall have been pledged to the Collateral Agent for the benefit of the Banks on a first priority perfected basis pursuant to a Security Agreement, First Mortgage and other Loan Documents, as applicable; and
(iv) subject to Section 8.02(w), the Borrower or any Restricted Subsidiary may (X) merge or consolidate with, or acquire all or substantially all of the assets of another Person or of a business or division of another Person or person so long as (Yy) consummate a bulk purchase of Recurring Service Contracts, provided that each of the following requirements is met:
(A) such Loan Party shall grant Liens in the assets acquired in such acquisition and otherwise comply with Section 10.18 on or before the date of such Permitted Acquisition;
(B) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(D) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
proposed acquisition, merger or consolidation the Borrower or a Restricted Subsidiary of the Borrower is the survivor entity, all of the assets acquired pursuant to such merger are pledged pursuant to a Security Agreement, First Mortgage and other Loan Documents on a first priority perfected basis, and no Event of Default shall have occurred and be continuing; and (Ez) after giving effect to such proposed acquisition, merger or consolidation, the Loan Parties shall demonstrate that they shall be Borrower is in compliance with the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained Leverage Ratio set forth in Section 7.2.18 calculated 8.02(r) and the Borrower demonstrates such compliance pursuant to Section 8.01(m) (if Section 8.01(m) requires such demonstration of compliance).
(i) Total Indebtedness shall be determined as of the date of the proposed acquisition, all after giving effect to thereto, and (ii) Consolidated Cash Flow from Operations shall be calculated for the twelve-month period ending on the last day of the fiscal quarter of the Borrower which precedes such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 evidencing such compliance;
(F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(H) the Loan Parties shall deliver to Agent at least five (5) Business Days before such Permitted Acquisition drafts of any agreements entered into or proposed to be entered into by such Loan Parties in connection with such Permitted Acquisition, together with due diligence reports received or prepared by or for the Loan Parties, and shall deliver to Agent such other information about such Person or its assets as any Bank may reasonably require; and
(3) the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretionacquisition.
Appears in 1 contract
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties The Borrowers shall not, and shall not permit any Subsidiary of their Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, except that
(i) any Subsidiary may consolidate or merge into TGI or another Subsidiary, provided that no Domestic Subsidiary shall merge or consolidate into a Foreign Subsidiary;
(ii) TGI or any of its Subsidiaries may acquire assets or Capital Stock of other Persons engaged in the business permitted under Section 7.2.10 (each a “Permitted Acquisition”), provided that:
(a) no Event of Default exists or will result from such acquisition;
(b) with respect to any Permitted Acquisition for which the aggregate Consideration to be paid therefor equals or exceeds $30,000,000, TGI notifies the Administrative Agent in writing of the acquisition at least 15 days before it is scheduled to close, and includes with such notice, to the satisfaction of the Administrative Agent, the following:
(1) any Subsidiary a certification by the Chief Executive Officer, President or Chief Financial Officer of TGI confirming the matters addressed in clauses (a) and (b) of this Section 7.2.6 (ii) and including a Borrower may consolidatepro forma computation of clause (c) below, liquidate or merge into the applicable Borrower so long as such Borrower is the surviving entity of such consolidation, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,and
(2) pursuant if the Borrowers wish to include any of the pre-acquisition EBITDA of the acquired business in the Borrowers’ Consolidated Adjusted EBITDA, copies of the financial statements, due diligence reports, and computations described in, and to the extent required under, clause (1) of the definition of Consolidated Adjusted EBITDA.
(c) on a Permitted Acquisition, a Loan Party (other than Parent) may (X) acquire substantially all pro forma basis using historical Consolidated EBITDA of the assets of another Person or of a and business or division of another Person or (Y) consummate a bulk purchase of Recurring Service Contracts, provided that each of the following requirements is met:
(A) such Loan Party shall grant Liens in the assets being acquired in such acquisition and otherwise comply with Section 10.18 on or before acquisition, the date of such Permitted Acquisition;
(B) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(D) no Potential Default or Event of Default shall exist immediately prior to and after giving effect to such Permitted Acquisition;
(E) the Loan Parties shall demonstrate that they shall be Borrowers are in compliance with the all financial covenants contained set forth in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations for the immediately preceding fiscal quarter for the twelve months then ended and the full immediately preceding fiscal year, as though such acquisition had occurred on the first day of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date each of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 evidencing such compliance;
(F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent ofrespective periods, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(Hiii) the Loan Parties Borrowers shall deliver be permitted to Agent at least five dissolve, liquidate or wind up (5A) Business Days before such Permitted Triumph Interiors, Ltd, organized under the laws of the Republic of Ireland, (B) Saygrove Acquisition drafts & Motion Control Limited, organized under the laws of any agreements entered into or proposed to be entered into by such Loan Parties in connection with such Permitted Acquisitionthe United Kingdom, together with due diligence reports received or prepared by or for (C) Airframe Spares & Logistics GmbH, organized under the Loan Partieslaws of Germany, and shall deliver (D) any other non-Loan Party Subsidiary to Agent such other information about such Person or its assets as any Bank may reasonably require; and
(3) the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretionextent not a Material Subsidiary.
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Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and shall not permit any Subsidiary of its Subsidiaries to, (a) dissolve, liquidate or wind-up windup its affairs, or (b) become a party to any merger or consolidation, (c) acquire (i) a majority of the voting equity interests or acquire by purchaseeconomic interests of another Person, lease or otherwise (ii) all or substantially all of the assets of another Person or capital stock of any a division, line of business or other Person, business unit of another Person or (d) consummate an LLC Division; provided that:
(1i) (A) any Loan Party other than the Borrower may consolidate or merge into, or liquidate into, the Borrower or another Loan Party which is wholly-owned by one or more of the other Loan Parties, (B) any Subsidiary of the Borrower that is not a Loan Party may consolidate or merge into, or liquidate into, the Borrower or any other Subsidiary and (C) any Subsidiary of the Borrower may consolidate, dissolve or liquidate or merge into the applicable Borrower so long as either (1) such Borrower is Subsidiary owns no assets at the surviving entity time of such consolidation, liquidation or merger and such consolidation, liquidation dissolution or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant any assets owned by such Subsidiary are transferred to the Borrower or another Subsidiary prior to such liquidation or dissolution (or if such Subsidiary is a Loan Party, to the Borrower or another Loan Party);
(ii) the Borrower and its Subsidiaries may (each of the following, a “Permitted Acquisition”) (A) consummate the Project Vitality Acquisition on or before December 31, 2020 in compliance with applicable Law and regulatory approvals and in accordance with the terms of the Project Vitality Acquisition Agreement, without giving effect to any modifications, amendments, consents or waivers by the Borrower or its Subsidiaries thereto that are materially adverse to the interests of the Lenders, unless consented to in writing by the Administrative Agent; provided that, concurrently with the closing of the Project Vitality Acquisition, the Loan Parties shall have taken all actions required by Sections 8.1.8 [Pledged Assets] and 8.1.9 [Additional Guarantors] (without giving effect to any permitted post-acquisition time period set forth therein), and (B) acquire, whether by purchase or by merger, (1) all or a Loan Party majority of the ownership interests of another Person, or (other than Parent2) may (X) acquire all or substantially all of the assets of another Person or of a business or division of another Person or (Y) consummate a bulk purchase of Recurring Service ContractsPerson, provided that that, in the case of this clause (B), each of the following requirements is are met:
(Aa) such the Loan Party Parties shall grant Liens have taken all actions required by Sections 8.1.8 [Pledged Assets] and 8.1.9 [Additional Guarantors] within the time frames set forth in Sections 8.1.8 [Pledged Assets] and 8.1.9 [Additional Guarantors];
(b) the assets acquired in such acquisition and otherwise business acquired, or the business conducted by the Person whose ownership interests are being acquired, as applicable, shall comply with Section 10.18 on 8.2.10 [Continuation of or before the date of such Permitted AcquisitionChange in Business];
(B) the Board of Directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(Dc) no Potential Default or Event of Default shall exist immediately prior to and or after giving effect to such Permitted Acquisition;
(Ed) the Loan Parties shall demonstrate that they Borrower shall be in pro forma compliance with the covenants contained in Sections 7.2.15, 7.2.16, Section 8.2.14 [Maximum Leverage Ratio] and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all 8.2.15 [Minimum Interest Coverage Ratio] after giving pro forma effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition as more fully set forth in the definition of Consolidated EBITDA), in each case, calculated as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered hereunder pursuant to Section 8.3.1 [Quarterly Financial Statements] or 8.3.2 [Annual Financial Statements];
(e) such Permitted Acquisition is not a Hostile Acquisition;
(f) if the aggregate Consideration paid for any such Permitted Acquisitions exceeds $50,000,000 (each, a “Material Permitted Acquisition”), the Borrower shall demonstrate to the Administrative Agent’s satisfaction of the condition set forth in clause (e) above by completing and delivering at least five (5) Business Days prior to such Permitted Acquisition Acquisition, a certificate in the form of Exhibit 7.2.6 8.2.6 evidencing such compliance;
(F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(Hg) in the Loan Parties case of a Material Permitted Acquisition, the Borrower shall deliver to the Administrative Agent (1) at least five twenty (520) Business Days days before such Permitted Acquisition (or such later date approved by the Administrative Agent), all financial statements received with respect to the Persons or assets proposed to be acquired, (2) at least ten (10) days before such Permitted Acquisition (or such later date approved by the Administrative Agent), drafts of any agreements entered into or proposed to be entered into by such Loan Parties Borrower in connection with such Permitted Acquisition, together and (3) prior to the time of such Permitted Acquisition (or such later date approved by the Administrative Agent), executed copies of such agreements entered into by Borrower in connection with due diligence reports received or prepared by or for the Loan Partiessuch Permitted Acquisition, and shall deliver to the Administrative Agent such other information about such Person or its assets as any Bank Lender may reasonably require; and
(3iii) the Loan Parties Borrower and its Subsidiaries may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretionInvestments permitted under Section 8.2.4 [Investments].
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Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and Borrower shall not permit any Subsidiary to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, provided that:
(1a) any Subsidiary of a Borrower may consolidate, liquidate or merge into the applicable Borrower so long as such Borrower is the surviving entity of such consolidation, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,
(2) pursuant to a Permitted Acquisition, a Loan Party (other than Parent) may (X) acquire substantially all of the assets of another Person or of a business or division of another Person or (Y) consummate a bulk purchase of Recurring Service ContractsSecurity Alarm Contracts from SAI or a counterparty approved by Agent in its reasonable discretion, which approval shall not be unreasonably withheld (each a “Permitted Acquisition”), provided that each of the following requirements is met:
(A1) such Loan Party Borrower shall grant Liens in the assets acquired in of such acquisition and otherwise comply with Section 10.18 Person on or before the date of such Permitted Acquisition;
(B2) the Board governing bodies of Directors or other equivalent such Person and Borrower shall have approved such Permitted Acquisition and Borrower shall have delivered to Agent written evidence of the approval of such governing body of Borrower and such Person shall have approved for such Permitted Acquisition;
(C) the business acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10;
(D3) no Potential Default or Event of Default shall exist immediately prior to and or after giving effect to such Permitted Acquisition;
(E4) the Loan Parties Borrower shall demonstrate to Agent’s satisfaction that they it shall be in compliance with the covenants contained in Sections 7.2.15Section 7.2.15 [Capital Expenditures and Leases], 7.2.16Section 7.2.16 [Minimum Cash Receipts], Section 7.2.17 [Minimum Fixed Charge Coverage Ratio], Section 7.2.18 [Maximum Funded Debt to Tangible Net Worth Ratio; Senior Funded Debt], Section 7.2.19 [Minimum Tangible Net Worth], and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained 7.2.20 [Maximum Attrition Rate], in Section 7.2.18 calculated as of the date of the acquisition, all each case after giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMRAcquisition, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) ), by delivering at least five (5) 5 Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 evidencing such compliance;
(F5) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(H) the Loan Parties Borrower shall deliver to Agent at least five (5) 5 Business Days before such Permitted Acquisition drafts copies of any agreements entered into or proposed to be entered into by such Loan Parties Borrower in connection with such Permitted Acquisition, together including a purchase agreement with due diligence reports received or prepared by or terms customary for the Loan Partiessecurity alarm industry, including an account guaranty, a purchase price holdback, and appropriate nonsolicitation provisions, an assignment and xxxx of sale (in a form reasonably acceptable to Agent), and a fully-executed Assignment and Modification Agreement with the Approved Central Station(s) that monitor the customers included in the Permitted Acquisition, and shall deliver to Agent such other information about such Person or its assets as any Bank Lender may reasonably require;
(6) if the seller will remain in business and will provide on-going services to the acquired customers, then Borrower shall enter into a service agreement with seller on terms customary for the security alarm industry, including appropriate nonsolicitation provisions, a right of first refusal, and a consent to collateral assignment to Agent;
(7) Borrower perform reasonable due diligence on not less than 500 of all security alarm customer contracts to be acquired (or such lesser amount as may be subject to the acquisition); and
(3b) the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretionsubject to Section 7.
Appears in 1 contract
Samples: Credit Agreement (CastleRock Security Holdings, Inc.)
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and shall not permit any Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or or, other than in connection with the Acquisition, acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, ; provided that:
(1i) upon prior written notice by the Borrowing Agent, any Subsidiary of Loan Party that is not a Borrower may consolidate, liquidate consolidate or merge with or into the applicable another Loan Party that is not a Borrower so long as the Administrative Agent shall have been provided with any and all documents, agreements, searches, filings or other items required by the Administrative Agent to maintain the Administrative Agent’s Prior Security Interest in the assets and Lien on the property of such Borrower is the surviving entity and such surviving entity shall have assumed all obligations of such consolidation, liquidation merged or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writing,consolidated Loan Party; and
(2ii) pursuant to a Permitted Acquisition, a any Loan Party may acquire (by purchase or other than Parentacquisition) may (Xx) acquire all of the ownership interests of another Domestic Person or (y) all or substantially all of the assets of another Domestic Person or of a business or division of another Domestic Person or (Y) consummate each, a bulk purchase of Recurring Service Contracts, “Permitted Acquisition”); provided that each of the following requirements is met:
(A) if such Loan Party shall grant Liens in is acquiring the assets acquired ownership interests in such acquisition Person, such Person shall join this Agreement as a Borrower or Guarantor pursuant to Section 11.16 [Joinder] and otherwise comply with the Administrative Agent shall have received all documents and other items required by Section 10.18 on or before the date of such Permitted Acquisition11.16 [Joinder];
(B) the Board board of Directors directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition and the Loan Parties also shall have delivered to the Administrative Agent and the Lenders written evidence of the approval of the board of directors (or equivalent body) of such Person for such Permitted Acquisition;
(C) each applicable Official Body shall have approved such Permitted Acquisition and the business acquired Loan Parties shall be a Recurring Service Contracts business have delivered to the Administrative Agent and the Lenders written evidence of the approval of such Official Body or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.10such Permitted Acquisition;
(D) no Potential Default the business acquired, or Event the business conducted by the Person whose ownership interests are being acquired, as applicable, shall be substantially the same as one or more line or lines of Default business conducted by the Loan Parties and shall exist immediately prior to and comply with Section 8.2.10 [Continuation of or Change in Business];
(E) the Borrowers shall demonstrate the following, each after giving effect to such Permitted Acquisition;
(E) the Loan Parties shall demonstrate that they shall be in compliance with the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and with the covenant contained in Section 7.2.18 calculated as of the date of the acquisition, all giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 8.2.6 evidencing such compliance: (w) the aggregate Consideration (excluding any Consideration in the form of equity) paid for all Permitted Acquisitions in any fiscal year does not exceed Fifty Million and 00/100 Dollars ($50,000,000.00), (x) Undrawn Availability of at least Thirty Million and 00/100 Dollars ($30,000,000.00), (y) after giving effect to such Permitted Acquisition and the incurrence of any Loans, other Indebtedness or contingent obligations in connection therewith, a pro forma Fixed Charge Coverage Ratio not less than the Fixed Charge Coverage Ratio required pursuant to Section 8.2.17 [Minimum Fixed Charge Coverage Ratio] for the period equal to the four (4) consecutive fiscal quarters most recently ended for which financial statements are available prior to the date of such Permitted Acquisition and (z) after giving effect to such Permitted Acquisition and the incurrence of any Loans, other Indebtedness or contingent obligations in connection therewith, a pro forma Leverage Ratio not to exceed 0.50 below the then applicable Leverage Ratio required pursuant to Section 8.2.18 [Maximum Leverage Ratio] for the period equal to the four (4) consecutive fiscal quarters most recently ended for which financial statements are available prior to the date of such Permitted Acquisition;
(F) the portion of the Consideration paid by the Loan Parties for any one Permitted Acquisition that constitutes the proceeds of the Revolving Credit Loans (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,000;
(G) the Loan Parties shall have delivered copies to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and the consent of the Person bound thereby shall either have been obtained or shall not be required); and
(H) the Loan Parties shall deliver to the Agent at least five ten (510) Business Days before such Permitted Acquisition drafts copies of (x) any agreements entered into or proposed to be entered into by such Loan Parties in connection with such Permitted Acquisition, together with due diligence reports received or prepared by or for the Loan Parties, and shall deliver to Agent (y) such other information about such Person or its assets as the Administrative Agent or any Bank Lender may reasonably require, including but not limited to, historical financial statements of such Person prepared by independent certified public accounts reasonably satisfactory to the Administrative Agent, and (z) pro forma projections (including a pro forma balance sheet, statements of operations and cash flow) and assumptions used by the Loan Parties to prepare such projections and all such items shall be in form and substance satisfactory to the Administrative Agent; and
(3G) the Loan Parties may consummate no Event of Default or Potential Default shall exist immediately prior to or after giving effect to such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretionAcquisition.
Appears in 1 contract
Samples: Credit Agreement (Universal Stainless & Alloy Products Inc)
Liquidations, Mergers, Consolidations, Acquisitions. Each of the Loan Parties shall not, and each Loan Party (other than Hallador) shall not permit any Subsidiary of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or otherwise all or substantially all of the assets or capital stock of any other Person, ; provided that:
(1) any Subsidiary of a such Loan Party other than the Borrower may consolidate, liquidate consolidate or merge into another Loan Party which is wholly-owned by one or more of the applicable Borrower so long as such Borrower is the surviving entity of such consolidation, liquidation or merger and such consolidation, liquidation or merger would not be reasonably expected to cause a Material Adverse Change, unless otherwise agreed to by Agent and Required Banks in writingother Loan Parties,
(2) pursuant to a Permitted Acquisition, a the Borrower or any such Loan Party may acquire, whether by purchase or by merger, (other than ParentA) may all of the ownership interests of another Person or (XB) acquire substantially all of the assets of another Person or of a business or division of another Person or (Y) consummate each, including the Transaction, a bulk purchase of Recurring Service Contracts"Permitted Acquisition"), provided that each of the following requirements is metmet for each Permitted Acquisition:
(Ai) such if the Loan Party shall grant Liens in Parties are acquiring the assets acquired ownership interests in such acquisition Person, such Person shall execute a Guarantor Joinder and otherwise comply with join this Agreement as a Guarantor pursuant to Section 10.18 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] on or before the date of such Permitted Acquisition;
(Bii) the Board Loan Parties, such Person and its owners, as applicable, shall grant Liens in the assets of Directors or acquired from and stock or other ownership interests in such Person and otherwise comply with Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] on or before the date of such Permitted Acquisition;
(iii) the board of directors or other equivalent governing body of such Person shall have approved such Permitted Acquisition;
(Civ) the business acquired, or the business conducted by the Person whose ownership interests are being acquired shall be a Recurring Service Contracts business or Persons in the alarm or Recurring Service Contract business and shall otherwise comply with Section 7.2.108.2.10 [Continuation of or Change in Business];
(Dv) no Potential Default or Event of Default shall exist immediately prior to and immediately after giving effect to such Permitted Acquisition;
(Evi) the Loan Parties Borrower shall demonstrate that they shall it will be in compliance with the covenants contained in Sections 7.2.15, 7.2.16, and 7.2.17 based upon calculations as of the end of the most recent period for which certificates under Section 7.3.3 shall have been delivered and Pro Forma Compliance with the covenant contained in Section 7.2.18 calculated as of 8.2.16 [Maximum Leverage Ratio] for the date of the acquisition, all four quarter period immediately after giving effect to such Permitted Acquisition (including in such computation Indebtedness or other liabilities assumed or incurred in connection with such Permitted Acquisition and including RMR, but excluding income earned or expenses incurred by the Person, business or assets to be acquired prior to the date of such Permitted Acquisition) by delivering at least five (5) Business Days prior to such Permitted Acquisition a certificate in the form of Exhibit 7.2.6 calculation evidencing such compliance, except that for the sole purpose of measuring such Pro Forma Compliance, the maximum ratio set forth in Section 8.2.16 [Maximum Leverage Ratio] shall be deemed to be reduced by 0.25;
(Fvii) the portion of the Consideration paid by the Loan Parties for any one such Permitted Acquisition that constitutes and all other Permitted Acquisitions made during the proceeds period after the Closing Date and the date of such Permitted Acquisition, but excluding the Revolving Credit Loans (as certified by an officer’s certificate from Consideration paid for the Chief Financial Officer) Transaction, shall not exceed $2,000,000 and the aggregate of the Consideration paid by the Loan Parties that constitutes proceeds of the Revolving Credit Loans for all Permitted Acquisitions made in any fiscal year (as certified by an officer’s certificate from the Chief Financial Officer) shall not exceed $4,000,00050,000,000;
(Gviii) the Loan Parties Borrower shall have delivered copies demonstrate that immediately after giving effect to Agent of, and collaterally assigned (or caused to be assigned) to Agent, the non-compete agreements and restrictive covenants arising out of such Permitted Acquisition (and that the consent amount of the Person bound thereby shall either have been obtained or Availability shall not be required)less than $30,000,000; and
(Hix) the Loan Parties shall deliver to the Administrative Agent at least five (5) Business Days before such Permitted Acquisition drafts copies of any agreements entered into or proposed to be entered into by such Loan Parties in connection with such Permitted Acquisition, together with due diligence reports received or prepared by or for the Loan Parties, Acquisition and shall deliver to the Administrative Agent such other information about such Person or its assets as any Bank the Administrative Agent may reasonably require; and
(3) the Loan Parties may consummate such other acquisition or RMR purchase transactions involving Permitted Businesses as may be approved by Required Banks in their sole discretion.
Appears in 1 contract
