Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing: (i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions: (A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition; (B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition; (C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body); (D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target; (E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000; (F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances); (G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
Appears in 5 contracts
Samples: Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Credit Party shall directly Directly or indirectly, by operation of law Law or otherwise, (a) convert into any other organizational form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine or merge with or acquire, any Person or any operating division of any Person. Notwithstanding the foregoing, except that:
(i) Borrower any Restricted Subsidiary may acquire all merge, consolidate or substantially all of otherwise combine with and into any Subsidiary Guarantor or the assets or all of the Stock of any Person Borrower; provided that (the "Target"w) such Subsidiary Guarantor (in each casethe case of a merger, consolidation or other combination with a "Permitted Acquisition"Subsidiary Guarantor) or the Borrower (in the case of a merger, consolidation or other combination with the consent of Requisite Lenders or without consent of Agent or Requisite LendersBorrower), but subject to as the satisfaction of each of case may be, is the following conditions:
(A) Agent shall receive reasonable (andsurviving entity, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3no wholly-owned Restricted Subsidiary may merge, consolidate or combine with or into a non-wholly-owned Restricted Subsidiary unless the wholly-owned Restricted Subsidiary is the surviving entity, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 no Domestic Subsidiary may merge, consolidate or combine with or into a Foreign Subsidiary unless a Domestic Subsidiary is the surviving entity and (z) ordinary course trade payables and accrued expenses Administrative Agent has been provided written notice of any such transaction within ten (10) Business Days or such later date as agreed to by the TargetAdministrative Agent;
(Eii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge, consolidate or otherwise combine with and into any other Subsidiary of any Loan Party that is not a Loan Party; provided that no wholly-owned Restricted Subsidiary may merge, consolidate or combine with or into a non-wholly-owned Subsidiary unless the wholly-owned Subsidiary is the surviving entity;
(iii) [Reserved];
(iv) the sum Loan Parties and their Restricted Subsidiaries may consummate Permitted Acquisitions and Investments (whether through a merger, consolidation, Stock purchase, asset purchase or otherwise) to the extent any such Permitted Acquisition or Investment is permitted under Section 7.2; and
(v) Loan Parties and their Restricted Subsidiaries may consummate a merger or consolidation of the Borrower into a newly formed entity organized under the laws of the United States of America, any state thereof or the District of Columbia; provided that either the Borrower shall be the surviving Person in such transaction or the Person surviving such transaction shall expressly assume, pursuant to an instrument reasonably satisfactory to the Administrative Agent, all amounts payable liabilities and obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is party. For the avoidance of doubt, nothing in this Agreement shall prevent Holdings, the Borrower or any Subsidiaries from being converted into, or reorganized or reconstituted as a limited liability company, limited partnership or corporation (or any similar form under a foreign jurisdiction in which such Subsidiary is organized at the time of such conversion, reorganization or reconstitution); provided that, with respect to any Loan Party, (i) the Loan Parties shall comply with the provisions of Section 6.11 and (ii) such Loan Party may not be converted into, or reorganized or reconstituted as any entity other than a domestic entity unless such conversion, reorganization or reconstitution is in connection with any single Permitted Acquisition (including all a transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:constituting an Investment permitted under Section 7.2.
Appears in 4 contracts
Samples: Credit and Guaranty Agreement (RadNet, Inc.), First Lien Credit and Guaranty Agreement (RadNet, Inc.), First Lien Credit and Guaranty Agreement (RadNet, Inc.)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8(a) No Loan Party shall, no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form merge, consolidate or otherwise combine with any Person or acquire or hold all or substantially all of the assets or capital stock of any Person or form, acquire or hold any Subsidiary, except that:
(i) Acquirer may acquire Shares of Gxxxxx’x pursuant to the Tender Offer and consummate the Acquisition;
(ii) Borrower may maintain its existing investments in its Subsidiaries as of the Closing Date;
(iii) Borrower may form DSG of Virginia, LLC, a wholly-owned Virginia limited liability company (“DSGV”), for the purpose of issuing and selling electronic gift cards; provided that at the time of formation of DSGV, the provisions of Section 5.16(a) are complied with;
(iv) At any time after the Merger has been consummated, any Subsidiary may liquidate or dissolve voluntarily into, and may merge with and into, Borrower or any other Subsidiary, and the assets or Stock of any Subsidiary may be purchased or otherwise acquired by Borrower or any other Subsidiary (bit being understood that Gxxxxx’x may only be purchased initially by Acquirer, and after consummation of the Merger, by Borrower); and provided; that the Borrower shall be the survivor of any merger with a Subsidiary and in no event shall any Subsidiary consolidate with or merge with and into any other Subsidiary unless after giving effect thereto, the Agent shall have a perfected pledge of, and security interest in and to, all of the issued and outstanding interests of Stock (on a fully diluted basis) merge withof the surviving Person to the same extent as the Agent had with respect to such merged or consolidated Person immediately prior to such merger or consolidation in form and substance satisfactory to the Agent and its counsel, consolidate withpursuant to such documentation and opinions as shall be necessary in the opinion of the Agent to create, acquire perfect or maintain the collateral position of the Agent and Lenders therein; and
(v) At any time after the Merger has been consummated, so long as no Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may (to the extent permitted by clause (g) of Section 6.2) purchase all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
(i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target"or any division thereof), or acquire such Person by merger.
(b) (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject Other than Gxxxxx’x and its Subsidiaries prior to the satisfaction of each consummation of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) aboveMerger, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:no Subsidiaries other than wholly-owned domestic Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Galyans Trading Co Inc), Credit Agreement (Dicks Sporting Goods Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall, or shall permit any Subsidiary to, directly or indirectly, by operation of law or otherwise, ,
(a) form any Subsidiary after the Closing Date; provided, however, that Credit Parties and their Subsidiaries may form new Subsidiaries after the Closing Date so long as (i) no Default or acquire Event of Default has occurred and is continuing, (ii) each Foreign Subsidiary is at least 80% owned by a Credit Party, (iii) each United States domestic Subsidiary is wholly owned by a Credit Party, (iv) contemporaneously with the formation of any such new Subsidiary, or Credit Parties and each new Subsidiary, as applicable, comply with the provisions of Section 5.13; or
(b) merge with, consolidate with, amalgamate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that (i) any Credit Party (other than Holdings) may merge into a Borrower and any Credit Party that is not a Borrower or Holdings may merge into another Credit Party that is not a Borrower or Holdings, provided that Borrower Representative shall be the survivor of any such merger to which it is a party and, in the event of a merger between a Credit Party that is not a Borrower and a Borrower, such Borrower shall be the survivor of any such merger and (ii) any Foreign Subsidiary may merge into another Foreign Subsidiary; provided, however, that Borrower Representative shall provide Agent with 30 days prior written notice of such merger under this clause (iii) and Credit Parties shall deliver to Agent on the date of consummation of any such merger any additional pledge agreements or amendments to the Pledge Agreements as shall be reasonably requested by Agent in connection with such merger. Notwithstanding the foregoing:
, any Credit Party or direct Foreign Subsidiary (iso long as, with respect to any acquisition by (A) Borrower Holdings, contemporaneously therewith, all assets so acquired are transferred to one or more Credit Parties, and (B) a direct Foreign Subsidiary, such acquisition complies with the limits on acquisitions that involve assets located in a jurisdiction outside of the United States set forth in clause (v) of this Section 6.1(b) and is in the form of an asset acquisition unless the Subsidiary so acquired is contemporaneously therewith merged into a direct Foreign Subsidiary of a Credit Party), may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:conditions (provided, that condition (vi) may be waived by Agent):
(Ai) Agent shall receive reasonable at least ten (and, in any event, not less than 14 days'10) Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition by a Credit Party or a direct Foreign Subsidiary shall only involve assets located in the United States and comprising comprise a business, or those assets of a business, of a type reasonably related to the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Credit Parties and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3except, without duplication, (yA) Guaranteed Indebtedness otherwise permitted under Section 6.6 and Loans made hereunder, (zB) ordinary course trade payables and payables, accrued expenses and unsecured or secured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and (C) Indebtedness permitted under Section 6.3(a)(xii) and Section 6.3(a)(xiii);
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000125,000,000 per acquisition and $250,000,000 in the aggregate during the term of this Agreement, of which $20,000,000 may be used for acquisitions that involve assets located in a jurisdiction outside of the United States, plus the amount of Stock issued by Holdings to any seller in connection with, and as the sum purchase price or portion of such amounts for all the purchase price for, any Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000Acquisition;
(Fvi) the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) to the extent the assets being acquired in connection with any Permitted Acquisition are located in the United States, at or prior to the closing of such Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto, and Credit Parties shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(1) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that, on a pro forma basis, (A) no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and (B) Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(2) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(3) a certificate of the chief financial officer of Holdings and each Borrower to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Holdings and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Holdings and its Subsidiaries subsequent to the date thereof based upon the historical performance of Holdings and its Subsidiaries and the Target and show that Holdings and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Annex G for the 3-year period thereafter; and (z) Holdings and Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of Section 5.9;
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing; and
(xii) after giving effect to any Permitted Acquisition, the aggregate amount of investments in Subsidiaries that are not Credit Parties shall not exceed the amount set forth in Section 6.2(g) (after giving effect to all other investments made under such Section 6.2(g)). Notwithstanding anything to the contrary contained herein, if operating income of the Target for the most recently ended twelve fiscal months is greater than or equal to $5,000,000 and the purchase price of the Permitted Acquisition, including, without limitation, any assumed Indebtedness, is less than or equal to $20,000,000, Borrowers shall not be required to deliver the items required in Section 6.1(b)(ix); provided that Borrowers shall be required to deliver (a) a balance sheet, income statement and cash flow statement of the Target for the Fiscal Year most recently ended and interim financial statements, to the extent available, for the period from the most recently ended Fiscal Year to the date of such Permitted Acquisition, (b) projections of the Target covering the 1 year period commencing on the date of such Permitted Acquisition and (c) a certificate of the chief financial officer of Holdings and each Borrower to the effect that (i) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition, (ii) Holdings and Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders and (iii) after giving effect to such Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing.
Appears in 2 contracts
Samples: Credit Agreement (Blount International Inc), Credit Agreement (Blount International Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any SubsidiarySubsidiary other than the formation or acquisition of a Subsidiary that constitutes a Permitted Acquisition, or (b) merge with, consolidate with, or convey, transfer, lease or otherwise dispose of, or acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except upon not less than five (5) Business Days prior written notice to Agent, (A) any Subsidiary of the Borrower may merge with, or dissolve or liquidate into, the Borrower or a wholly-owned Subsidiary of the Borrower which is a Domestic Subsidiary, provided that the Borrower or such wholly-owned Subsidiary which is a Domestic Subsidiary shall be the continuing or surviving entity and all actions required to maintain perfected Liens on the Stock of the surviving entity and other Collateral in favor of Agent shall have been completed and (B) any Inactive Subsidiary may dissolve, liquidate or wind up its affairs. Notwithstanding the foregoing:
, Borrower (i) Borrower or Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to Borrower), may acquire all or substantially all of the assets, which assets are located in the United States, or all of the Stock of any Person organized under the laws of any State in the United States or the District of Columbia (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted AcquisitionAcquisition at least fifteen (15) Business Days prior to the consummation of such proposed Permitted Acquisition (or such lesser period as agreed by the Agent in its sole discretion), which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising comprise a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are or a business reasonably related, ancillary or complimentary related thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the that would be reasonably likely to have an adverse effect on Agent’s or any Lender’s exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing selling shareholders or equivalent body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(Fiv) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted EncumbrancesLiens permitted by Section 6.7);
(Gv) Concurrently at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Liens permitted under Section 6.7) in all assets (other than any real property, Equipment or Fixtures) acquired pursuant thereto or in the assets (other than any real property, Equipment or Fixtures) and Stock of the Target, any Person upon becoming a Subsidiary of a Credit Party pursuant to any Permitted Acquisition shall guarantee the Obligations and join this Agreement as a Credit Party, and Holdings and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(vi) concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) Audited financial statements of the Target (or, if not available, other financial information reasonably satisfactory to Agent);
(B) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings, its Subsidiaries and the business and operations being acquired (“Acquisition Pro Forma”) and either:
(I) such Acquisition Pro Forma shall reflect that (x) Liquidity is at least $10,000,000 immediately prior to and after giving effect to such Permitted Acquisition and all Loans funded in connection therewith, if any, and (y) on a pro forma basis, Holdings and its Subsidiaries would have on a consolidated basis a Fixed Charge Coverage Ratio of not less than 1.00 : 1.00 for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (calculated as if such Permitted Acquisition and all Loans funded in connection therewith had been made on the first day of such period); or
(II) no Revolving Credit Advances shall be outstanding immediately prior to such Permitted Acquisition, on the date of such Acquisition or immediately after giving effect to such Permitted Acquisition;
(C) projections covering the one (1) year period commencing on the anticipated date of such Permitted Acquisition and otherwise prepared in accordance with the Projections and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition;
(D) a certificate of the chief financial officer of Holdings and Borrower to the effect that: (x) Borrower (after taking into consideration all rights of contribution and indemnity Borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition and (y) the Acquisition Pro Forma fairly presents the financial condition of Holdings and Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; and
(E) if requested by Agent, the Credit Parties shall deliver written information relating to their due diligence investigation with respect to the Target and such Permitted Acquisition; provided, that if such written information is subject to confidentiality restrictions, Agent shall enter into a confidentiality agreement which is in form and substance reasonably satisfactory to Agent (and, if applicable, the Target);
(vii) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents and information reasonably requested by Agent, including those specified in the last sentence of Section 5.9; and
(viii) no Default or Event of Default shall then exist or would exist immediately after giving effect thereto. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory until field examinations and appraisals of Target and/or its assets have been satisfactorily completed (and with respect to such Accounts and Inventory of the Target, Agent shall have the right to adjust the criteria of Eligible Accounts and Eligible Inventory, adjust advance rates and establish Reserves in its Permitted Discretion); it being understood and agreed that, if Borrower requests such field examination and appraisal, Agent agrees to use reasonable efforts to have such field examination and appraisal completed (in each case, with Borrower’s cooperation with appraisers, Agent and its agents in an effort to facilitate and promptly conclude any such field examination and appraisal) within the time period that is customary and reasonable for completion of such field examination and appraisal; provided that field examinations and appraisals in connection with Permitted Acquisitions shall not count against the limited number of field examinations or appraisals for which expense reimbursement may be sought.
Appears in 2 contracts
Samples: Credit Agreement (Insteel Industries Inc), Credit Agreement (Insteel Industries Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8No Loan Party shall, no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form merge, consolidate or otherwise combine with any Person or acquire any Subsidiary, or (b) merge with, consolidate with, acquire hold all or substantially all of the assets or Stock ofcapital stock of any Person or form, acquire or otherwise combine with or acquirehold any Subsidiary, any Person. Notwithstanding the foregoing:
except that (ia) Borrower may acquire all or substantially all hold any portion of the assets or stock of DSG Holdings and/or all of the Stock of any Person DAMC and so long as no Default has occurred and is continuing DAMC may merge with and into Borrower so long as Borrower is the surviving entity of such merger and (b) Borrower (so long as no Default has occurred and is continuing or would occur as a result of such merger) may merge with and into a wholly-owned Subsidiary of Borrower with such Subsidiary as the "Target"surviving corporation; provided that (i) (in each case, such Subsidiary is a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject Delaware corporation which is organized immediately prior to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, such merger and prior to such merger does not engage in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, transactions or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary activities or complimentary thereto, incur or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent assume any obligations or any Lender to regulatory or third party approvals liabilities (except in connection with its organization), (ii) the exercise sole purpose and result of such merger is Borrower or its rights successor in interest becoming a Delaware corporation, (iii) upon such merger, such Subsidiary by operation of law shall assume all Borrower's assets, rights, obligations, liabilities and remedies under this Agreement or any duties and such Subsidiary shall be the Borrower for all purposes hereof and the other Loan Documents other than approvals applicable and shall assume pursuant to documentation satisfactory to Agent all the exercise Obligations, (iv) the certificate of incorporation and by-laws of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition surviving Person shall be consensual and shall have been approved by the Targetidentical to Borrower's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after before giving effect to such Permitted Acquisitionmerger except for such changes thereto required by Delaware corporate law, provided that in any event the provisions of such certificate of incorporation and by-laws relating to the Stock of such surviving Person shall be identical to Borrower's before giving effect to such merger, (v) such merger shall not violate any agreements, contracts, instruments, leases or other documents to which Borrower is a party or by which its property is bound, except (x) Indebtedness otherwise permitted under Section 6.3any violation which has been disclosed to Agent and which Agent has determined in its discretion to be non material, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(Evi) the sum surviving Person of all amounts payable such merger shall be named Dick's Sporting Goods, Inc., (vii) in connection with any single Permitted Acquisition (including all transaction costs and all Indebtednesssuch merger, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower Agent shall have delivered to Agent, received an opinion in form and substance reasonably satisfactory to Agent from counsel satisfactory to Agent:, and (viii) such merger shall otherwise be satisfactory to Agent.
Appears in 2 contracts
Samples: Credit Agreement (Galyans Trading Co Inc), Credit Agreement (Dicks Sporting Goods Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
, except that (i) Holdings shall be permitted to transfer the Stock of the Telmark Entities and Agway Insurance Company to Agway, (ii) any Borrower may merge with any other Borrower, provided that Borrower Representative shall be the survivor of any such merger to which it is a party, and (iii) Agway Energy Product LLC may acquire all or substantially all of the assets or all of the Stock Lebanon division of any Person The SICO Company (the "TargetSICO") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
: (A) Agent shall receive reasonable (and, in any event, not less than 14 days') have received at least 10 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
acquisition; (B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a the consolidated balance sheet of Borrower and Target Borrowers after giving effect to such Permitted Acquisitionacquisition, except (xi) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zii) ordinary course trade payables and payables, accrued expenses of the Target;
and unsecured Indebtedness; (EC) the sum of all amounts payable in connection connections with any single Permitted Acquisition the acquisition of SICO (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and TargetBorrowers) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
850,000; (FD) the business and assets acquired in such Permitted Acquisition acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
; (GE) Concurrently with delivery at or prior to the closing of such acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in the notice referred to in clause (A) aboveassets purchased from SICO, Borrower and Borrowers shall have delivered to Agentexecuted such documents and taken such actions as may be required by Agent in connection therewith; and (F) at the time of such acquisition and after giving effect thereto, in form no Default or Event of Default has occurred and substance reasonably satisfactory to Agent:is continuing.
Appears in 2 contracts
Samples: Credit Agreement (Agway Inc), Credit Agreement (Agway Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Credit Party No Borrower shall directly or -------------------------- indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, if the ------ following conditions are satisfied, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the --------------------- satisfaction of each of the following conditions:
(Ai) Agent Lender shall receive reasonable at least three (and, in any event, not less than 14 days'3) prior Business Days'prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are or a business reasonably related, ancillary or complimentary related thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in 20,000,000 during any Fiscal Year shall not exceed $15,000,000Year;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) Concurrently with delivery at or promptly after the closing of any Permitted Acquisition, Lender will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the notice referred to Target, and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Lender in clause connection therewith;
(Aviii) above, Borrower Borrowers shall have delivered to AgentLender, in form and substance reasonably satisfactory to AgentLender, financial information related to the acquisition:
(ix) at the request of Lender, InterCept shall provide, in form and substance reasonably satisfactory to Lender, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Lender;
(x) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing; and
(xi) on or prior to the date of such Permitted Acquisition, in the case of any Permitted Acquisition, the consideration for which equals or exceeds $10,000,000, Lender shall have consented in writing to such Permitted Acquisition.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 Neither Borrower shall, or 6.8shall cause or permit any Subsidiary to, no Credit Party shall directly or indirectly, by operation of law or otherwise, (ai) form or acquire any Subsidiary, or (bii) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquirewith, any PersonPerson except that any Subsidiary (other than NOW Canada, Venezuela, UK Borrower, Singapore, Australia and the NOW International) may merge into US Borrower; provided that US Borrower is the surviving Person in such merger. Notwithstanding the foregoing:
(i) , but subject to all other provisions of this Agreement, US Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but make Investments in newly formed Subsidiaries subject to the satisfaction of each of the following conditions:
(Ai) Administrative Agent shall receive reasonable at least thirty (and, in any event, not less than 14 30) days') ' prior written notice of the expected consummation date of upon which such proposed Permitted AcquisitionAcquisition will be made, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets or businesses located in the United States (which assets may be contributed to a Subsidiary) or assets located in a foreign country (which assets shall be contributed to a Subsidiary of NOW International) and comprising comprising, in each case, a business, or those assets of a business, of the type engaged in by US Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Administrative Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to US Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(Diii) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of US Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Revolving Credit Advances and (zB) ordinary course trade payables and accrued expenses of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(Eiv) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) except as otherwise permitted in connection with a Permitted Acquisition, form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower and any other Credit Party may merge into any Borrower, provided that Borrower Representative shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
foregoing clause (i) Borrower b), any Borrower, may acquire or, subject to the last sentence of this Section 6.1, form a Subsidiary to acquire, all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:.
(Ai) Agent shall receive reasonable at least fifteen (and, in any event, not less than 14 days'15) Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition, and with respect to any proposed Permitted Acquisition involving a purchase price consideration (inclusive of any assumption of liabilities) in excess of $25,000,000, Requisite Lenders shall have consented to such Proposed Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of of, or similar to, the type types engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors;
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Giv) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower with respect to any Permitted Acquisition involving a purchase price consideration (inclusive of any assumption of liabilities) in excess of $7,500,000, Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and their respective Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and their respective Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith;
(B) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer or treasurer of each Borrower to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each other Subsidiary of each Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the 3-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(v) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents relating thereto; and
(vi) at the time of such Permitted Acquisition and after giving effect thereto, (x) Borrowing Availability of all Borrowers exceeds $20,000,000 and (y) no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, (a) the Accounts, Inventory, Equipment and Real Estate of the Target shall not be included in Eligible Accounts, Eligible Inventory, Eligible Equipment and Eligible Real Estate until (x) Agent determines, on the basis of any field examinations and appraisals conducted by it in connection with such Permitted Acquisition, the appropriate advance rates and Reserves applicable thereto and (y) such assets become subject to the first priority perfected security interests of Agent and otherwise meet the eligibility criteria which apply to such assets and (b) whether or not the assets thereof become part of the Borrowing Base, if a new Subsidiary is formed in connection with any Permitted Acquisition, or, if the Permitted Acquisition is of Stock of a Person which, upon consummation thereof, would become a Subsidiary, such Subsidiary shall (i) if a domestic Subsidiary, (x) become a Credit Party hereunder, (y) enter into a guaranty and a security agreement, each in form and substance identical to the Subsidiary Guaranty and the Security Agreement, and (z) take such other action as may be reasonably requested by Agent to have the assets of such Subsidiary become subject to the first priority perfected security interests of Agent, and (ii) if a foreign Subsidiary, take such action as may be reasonably requested by Agent to have 51% of the Stock of such foreign Subsidiary to be pledged to Agent and subject to the first priority perfected security interest of Agent provided that if such .foreign Subsidiary is a “check the box” subsidiary, 100% of the stock shall be pledged to Agent and subject to the first priority perfected security interest of Agent.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no (a) No Credit Party shall directly or indirectly, by operation of law or otherwise, (ai) form or acquire any Subsidiary, or except, so long as the conditions set forth in the immediately following paragraph (b) are satisfied, Liposome may directly form (A) a wholly-owned domestic Subsidiary (the "Intermediary Holding Company") which Intermediary Holding Company shall, subject to such conditions, be permitted to directly form foreign Subsidiaries which shall be wholly-owned by the Intermediary Holding Company (other than directors' qualifying shares) and (B) other directly owned domestic Subsidiaries, or (ii) without the prior written consent of Requisite Lenders (such consent not to be unreasonably withheld or delayed), merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person. Notwithstanding , except that (A) any indirect or direct foreign Subsidiary of Liposome may merge with or consolidate with another indirect or direct foreign Subsidiary of Liposome, (B) the foregoing:Intermediary Holding Company may acquire from Liposome any foreign Subsidiary existing as of the Closing Date and (C) Liposome Manufacturing and/or Liposome Holdings, Inc. may merge with and into Liposome, provided that Liposome shall be the survivor of any such merger.
(b) Liposome may form the Intermediary Holding Company and other directly owned domestic Subsidiaries, provided that, (i) Borrower the Intermediary Holding Company and all such other newly formed domestic Subsidiaries shall be 100% directly owned by Liposome, (ii) the Intermediary Holding Company shall not engage in any business or other activities or incur any Indebtedness or any other liabilities (other than solely in connection with its formation and its ownership interest in any of its foreign Subsidiaries permitted to be formed or acquired, pursuant to the terms hereof and other than in connection with receiving and making dividends to the extent permitted and required by Section 6.14), (ii) 100% of the capital stock of the Intermediary Holding Company and any such other newly formed domestic Subsidiary shall be pledged to Collateral Agent, for the benefit of itself, Agent and Lenders pursuant to the terms of the Liposome Pledge Agreement, (iii) pursuant to a joinder agreement in each case in form and substance satisfactory to Agent, the Intermediary Holding Company and any such other newly formed domestic Subsidiary shall become a party to the Subsidiary Security Agreement and the Subsidiary Guaranty, (iv) Agent shall have received financing statements and other documents reasonably requested by Agent to insure that Collateral Agent, for the benefit of itself, Agent and Lenders, has a first priority perfected security interest in the assets of such newly formed domestic Subsidiary subject to the Subsidiary Security Agreement, and (v) in connection with the formation of the Intermediary Holding Company or any such other newly formed domestic Subsidiary and any joinder agreement referred to in the second preceding clause (iii) and the financing statements and other documents referred to in the immediately preceding clause (iv) and the transactions contemplated thereby, Agent shall have received an opinion in form and substance satisfactory to Agent from counsel satisfactory to Agent.
(c) Notwithstanding the foregoing paragraphs (a) and (b), Liposome may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent, Collateral Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, * during any Fiscal Year and the sum of such amounts portion thereof allocable to goodwill and intangible assets for all such Permitted Acquisitions in during any Fiscal Year shall not exceed $15,000,000*;
(Fvi) the Target shall not have incurred a negative EBIT for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's Financial Statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) Concurrently at or prior to the closing of any Permitted Acquisition, Collateral Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets of the Target, and Borrowers or the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith (including, in the case of an acquisition of capital stock, that (A) the Target, pursuant to a joinder agreement in form and substance satisfactory to Agent, shall have ___________________________ * Confidential treatment requested. become a party to the Subsidiary Security Agreement and the Subsidiary Guaranty and (B) Liposome shall have granted to Collateral Agent, for the benefit of itself, Agent and Lenders, a first priority perfected security interest in 100% of the capital stock of the Target pursuant to the terms of the Liposome Pledge Agreement;
(ix) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent, all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(x) concurrently with the delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:, a certificate of the Chief Financial officer of Liposome to the effect that at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Liposome Co Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 The Borrower shall not (and shall not suffer or 6.8permit any of its Domestic Subsidiaries to), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquirewith, any Person. Notwithstanding the foregoingPerson or acquire any Subsidiary; provided that:
(ia) any Domestic Subsidiary of the Borrower may merge or consolidate with any other Domestic Subsidiary of the Borrower; and
(b) the Borrower or any of its Domestic Subsidiaries may acquire all or substantially all of the assets or all of the Stock or other ownership interests of any Person (the "“Target") (”), in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but case subject to the satisfaction of each of the following conditions:conditions of this Section 6.1 (any such acquisition of a Target, a “Permitted Acquisition”):
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bi) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by the Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentEffective Date, and which businesses business would not subject the Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to the Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(Eii) the sum of all amounts paid or payable in connection with any single such Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of the Borrower and the Target, together with the sum of all such amounts paid or payable for all such prior Permitted Acquisitions made in the then current Fiscal Year of the Borrower (collectively, “Prior Permitted Acquisitions”) and the sum of all amounts paid or payable for all Permitted Investments made in the then current Fiscal Year of the Borrower in accordance with Section 6.2(g) shall not exceed $5,000,000, and 100,000,000 in the sum of such amounts for all Permitted Acquisitions aggregate in any Fiscal Year of the Borrower (the “Cap”); provided that any consideration paid or payable to a Target in connection with a Permitted Acquisition that consists either of (x) Stock of the Borrower or (y) other securities convertible into or exercisable for Stock of the Borrower that are not required to be reflected as liabilities on the balance sheet of the Borrower in accordance with GAAP, shall not exceed $15,000,000be included in the calculation of the Cap;
(Fiii) (A) the business and assets acquired in Fixed Charge Coverage Ratio for each Rolling Period at the end of each of the four full Fiscal Quarters immediately following the closing of such Permitted Acquisition shall be free projected to be equal to or greater than 1.25 to 1.00; (B) at all time during the thirty (30) days prior to the actual date of consummation of such Permitted Acquisition and clear immediately following the actual date of all Liens consummation of such Permitted Acquisition, Net Liquidity Availability shall be $40,000,000, or more; and (other than C) the Borrower shall deliver to Agent, at least five (5) days prior to the consummation of such Permitted EncumbrancesAcquisition, a certificate of the chief financial officer of the Borrower, in form and substance acceptable to the Agent, certifying that the above conditions in this Section 6.1(b)(iii) have been met (and showing in reasonable detail the calculations used in determining compliance);
(Giv) Concurrently with delivery of the notice referred to in clause Agent shall have received, (A) aboveprior to the date of such Permitted Acquisition, Borrower shall have delivered to drafts of the acquisition agreement for such Permitted Acquisition and of all related agreements, instruments, opinions, certificates and other documents reasonably requested by the Agent, and (B) no later than five (5) Business Days after the date of such Permitted Acquisition, copies of the executed acquisition agreement, related agreements and instruments for such Permitted Acquisition, and all opinions, certificates and other documents reasonably requested by the Agent, in form and substance reasonably satisfactory to the Agent:;
(v) the Borrower shall have complied with its obligations under Sections 5.10, 5.15 and 5.17 with respect to such Permitted Investment; and
(vi) both before and after giving effect to such Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing; provided, that, notwithstanding the foregoing, the Inventory and Accounts of the Target shall not be included in Eligible Inventory or Net Receivables Balance without the prior written consent of the Agent and the Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Synnex Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8During any Additional Covenant Activation Period, unless the Borrowers are in compliance with Section 5.11 both before and after giving effect to any proposed transaction, no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary; provided, that the foregoing shall not prevent (i) the formation of a transitory merger Subsidiary formed solely to consummate a Permitted Acquisition that is a Stock Acquisition, (ii) the formation of a Subsidiary formed solely to consummate a Permitted Acquisition that is an Asset Acquisition, or (iii) the formation of a Subsidiary with respect to which the Borrowers have made a determination that such Subsidiary is to become a Credit Party; or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any PersonPerson except that, so long as (i) the Borrowers are in compliance with Section 5.11 both before and after giving effect to any proposed transaction, the foregoing shall not prevent the consummation of a Permitted Acquisition or the making of an Investment permitted under Section 6.2 hereof, and (ii) no Default or Event of Default has occurred and is continuing or would result therefrom (A) any Borrower may merge with another Borrower, (B) any Guarantor may merge with any other Guarantor or with a Borrower, (C) any Subsidiary that is not a Credit Party may merge with any other Subsidiary that is not a Credit Party, and (D) any Subsidiary that is not a Credit Party may merge with a Borrower or a Guarantor with the prior written consent of Agent, such consent not to be unreasonably withheld. Notwithstanding the foregoing:
(i) Borrower may acquire , in no event shall any Credit Party form any Subsidiary or consummate any merger, consolidation, or acquisition of all or substantially all of the Stock of, or other combination or acquisition of, any Person, unless (1) for any such merger or combination including the Borrower Representative, the Borrower Representative is the survivor thereof, (2) for any such merger or combination including any other Borrower (but not including the Borrower Representative), a Borrower is the survivor thereof, (3) for any such merger or combination not including a Borrower, the resulting entity is or becomes a Credit Party in connection therewith, (4) any such Person acquired, or Subsidiary formed (other than (x) a transitory merger Subsidiary to be dissolved upon completion of the applicable merger, or (y) a Subsidiary that is not required to be a Credit Party pursuant to Section 6.10 hereof), by any Credit Party, effective upon such acquisition or formation, becomes a Credit Party. With respect to any such Subsidiary or Person becoming a Credit Party hereunder, Borrowers shall have provided written notice thereof to Agent, and such Subsidiary or other Person shall have executed and delivered a joinder to the Guaranty and Security Agreement in order to make such Subsidiary or other Person a party thereto, together with any and all financing statements and other documentation reasonably requested by Agent in order to cause such cause Subsidiary to be obligated with respect to the Obligations and to include the assets or all of such Subsidiary that would constitute Collateral within the perfected Liens with respect to the Collateral hypothecated under the Loan Documents. Any such acquisition by any Credit Party of the Stock or assets of, or merger with or into, any Person other than a Credit Party, or formation of any Person (the "Target") (Subsidiary not becoming a Credit Party in connection therewith, in each casecase to the extent during an Additional Covenant Activation Period, a "shall (without duplication of reductions pursuant to other provisions of this Agreement) reduce the Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
/Investment Amount (A) Agent shall receive reasonable (andsuch reduction, in the case of any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in limited to the United States and comprising a business, or those assets of a business, Excess Negative EBITDA of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary acquired Person or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing bodyassets);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:.
Appears in 1 contract
Samples: Credit Agreement (Gateway Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary unless such Subsidiary, upon its formation or acquisition, as applicable, become a Credit Party hereunder and Borrowers and such Subsidiary take such actions as required by Section 5.10, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person; provided, that (x) any Borrower may merge with and into another Borrower so long as the Borrower Representative shall be the survivor of any such merger to which it is a party, (y) any Subsidiary may merge with and into a Borrower so long as such Borrower shall be the survivor of any such merger to which it is a party and (z) any Subsidiary may merge with, consolidate with, acquire all, or substantially all the assets or Stock of another Subsidiary so long as, if either is a Borrower, then the survivor of any such merger, consolidation or acquisition is a Borrower and, if either is a Credit Party that is not a Borrower, then the survivor of any such merger, consolidation or acquisition is a Credit Party. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 30) days') ’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada (subject to immaterial amounts of assets not so located) and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentRestatement Date, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals of the type applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)persons performing similar functions;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Loans made hereunder, (B) ordinary course trade payables, accrued expenses and unsecured Indebtedness otherwise of the Target to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and (C) other debt that would constitute Indebtedness permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(Ev) unless Agent otherwise consents, the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, 50,000,000 (and $15,000,000 for any single Permitted Acquisition) and the sum of such amounts portion thereof allocable to goodwill and intangible assets for all such Permitted Acquisitions in any Fiscal Year during the term hereof shall not exceed $15,000,00010,000,000;
(Fvi) unless Agent otherwise consents, the Target shall not have incurred negative EBITDA for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability of all Borrowers for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $30,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $30,000,000 shall continue for at least ninety (90) days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and either (i) Borrowers would have been in compliance with the Financial Covenant for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex D prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period and calculated without regard to whether the then current Borrowing Availability exceeds the Minimum Availability Amount or (ii) the sum of all amounts payable (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and the applicable Target(s)) in connection with (A) all Permitted Acquisitions shall not exceed $10,000,000 in the aggregate and (B) any such Permitted Acquisition shall not exceed $5,000,000 (or such greater amount agreed to by Agent, but in any event not to exceed, when aggregated with all other Permitted Acquisitions for purposes of this clause (ii), $10,000,000);
(B) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer or treasurer of Borrower each to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each Borrower and each other Subsidiary of Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable and good faith estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and based upon good faith assumptions made in light of current conditions and current facts known to Borrowers and show that Borrowers shall continue to be in compliance with the Financial Covenant for the 2-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the non-privileged results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of Section 5.9; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory until Agent has notified Borrower Representative that it has completed such diligence matters (including, audits and appraisals (which shall be completed by appraisers chosen by Agent), as applicable) necessary to determine the eligibility thereof; provided; that Agent shall agree to act as promptly as practicable to complete such diligence matters; provided, further, that any audits, field examinations and/or appraisals in connection with Permitted Acquisitions shall not count against the limited number of audits, field examinations and appraisals for which expense reimbursement may be sought. The foregoing shall not preclude the Borrowers from including the Accounts and Inventory of the Target in any pro forma calculations required pursuant to this Section 6.1.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, On and after the Closing Date no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person, except (i) that any Borrower may merge with another Borrower, provided that Ringer shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
(i) Borrower , Ringer may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent Lender shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmenta similar related business, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3the Revolving Credit Advance made hereunder to fund such Permitted Acquisition, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and accrued expenses of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and (C) other Indebtedness, Guaranteed Indebtedness obligations and liabilities permitted by Lender in its sole discretion;
(Ev) the sum of all amounts payable in connection with any single such Permitted Acquisition shall be structured as an asset acquisition by Ringer or as an acquisition of one hundred percent (including all transaction costs and all Indebtedness100%) (or, liabilities and contingent obligations incurred in the discretion of Lender, such lower percentage) of the capital stock of the Target directly by Ringer; provided that if any material portion of the Target's business or assumed in connection therewith or otherwise reflected in assets shall be held through any Subsidiary of the Target, at the discretion of Lender, such Subsidiary shall become a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000under this Agreement;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) Concurrently at or prior to the closing of any Permitted Acquisition, Lender will be granted a first priority perfected Lien (subject to Permitted Encumbrances) (x) in the case of an asset acquisition, all assets of the Target (and its Subsidiaries, if any) acquired pursuant thereto, or (y) in the case of an acquisition of the capital stock of the Target, the assets of the Target (and its Subsidiaries, if any) and one hundred percent (100%) (or, in the discretion of Lender, such lower percentage with respect to foreign entities) of the capital stock of the Target (and its Subsidiaries, if any) acquired by Ringer and Borrowers, the Target and the Target's Subsidiaries (if any) shall have executed such documents and taken such other actions as may be required by Lender in connection therewith including, in the case of a Permitted Acquisition in which the Target (and/or a Subsidiary of the Target) becomes a Subsidiary of Ringer, such documents and actions as may be required by Lender to make the Target (and/or such Subsidiary) a Credit Party under this Agreement (as a Borrower or Guarantor, as applicable);
(viii) Lender shall have completed all business and legal due diligence with respect to the Target and the proposed acquisition with results satisfactory to Lender including the capital structure, corporate structure, governing documents and material agreements of Borrowers and the Target and their respective Subsidiaries after giving effect to the proposed acquisition, and the legal and tax effects resulting from such proposed acquisition;
(ix) Lender shall have received satisfactory evidence that the Credit Parties have obtained all required consents, waivers, acknowledgments, orders, authorizations and approvals of all Persons including all requisite Governmental Authorities, to the consummation of the proposed acquisition;
(x) as soon as possible after delivery of the notice referred to in clause (Ai) aboveabove but in no event later than ten (10) Business Days after delivery of such notice, Borrower Borrowers shall have delivered to AgentLender, in form and substance reasonably satisfactory to AgentLender:
(A) a pro forma consolidated balance sheet of Ringer and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial data, which shall be complete and shall accurately and fairly represent the assets, liabilities, financial condition and results of operations of Ringer and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of the Revolving Credit Advance, and the assumption of liabilities permitted to be assumed pursuant to Section 6.1(iv)(B), in connection therewith, and such Acquisition Pro Forma shall reflect that on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Lender, taking into account such Permitted Acquisition;
(C) a Fair Salable Balance Sheet, prepared on the same basis as the Acquisition Pro Forma, setting forth therein Borrowers' assets at their fair salable value on a going-concern basis with the liabilities set forth therein including all contingent liabilities of Borrowers stated at the reasonably estimated present values thereof; and
(D) a certificate of the Chief Financial Officer of each Borrower to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each other Subsidiary of Ringer) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target; and (z) Borrowers have substantially completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Lender;
(xi) on or prior to the date of such Permitted Acquisition, Lender shall have received, in form and substance satisfactory to Lender, all acquisition documents related thereto, legal opinions, evidence of solvency, certificates, lien search results, amendments to the Loan Documents including Annex G and execution of additional Loan Documents and other documentation as may be requested by Lender to reflect the Permitted Acquisition, the additional Credit Parties, the availability of the increase in the Effective Revolving Loan Commitment and other matters related to the Permitted Acquisition, which collectively shall confirm to Lender's satisfaction that the conditions set forth herein have been satisfied; and
(xii) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, the Accounts and Inventory of the Target (or of any Subsidiary of the Target) shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Lender and shall not be included in the Borrowing Base in any event until completion by Lender of its audit examination of the Target. If the Accounts and Inventory of the Target (or any Subsidiary of the Target) which is to become a Subsidiary of Ringer are included in Eligible Accounts and Eligible Inventory pursuant to the preceding sentence, then such Person shall become a Borrower under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Ringer Corp /Mn/)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8this Agreement, no Credit Party such Borrower shall directly or indirectly, by operation of law or otherwise, (a1) form or acquire any Subsidiary, or (b2) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or any Person, (3) acquire, whether through purchase or exchange of Stock or assets or otherwise, all or any part of the assets of any other Person (including, without limitation, Alarm Contracts) or any Stock of or other equity interest in any other Person, (4) dissolve, terminate its existence, consummate any recapitalization, reorganization or other change in its capital structure or the respective voting rights of its members, including without limitation the issuance of any new, additional or different type or class of Stock, the modification, reduction or retirement of any existing class of Stock, or (5) enter into any agreement to do any of the foregoing. Notwithstanding the foregoing:
(i) , at any time and from time to time, so long as at the time thereof and after giving effect thereto no Default or Event of Default has occurred and is continuing, any Borrower may (A) form wholly-owned Subsidiaries organized under the laws of the United States or any State thereof (so long as the terms of Section 6.11 are fully complied with) and (B) acquire all or substantially all any part of the assets or all of the Stock of any Person organized under the laws of the United States or any State thereof (the "“Target") ”), including any Alarm Contracts of a Target (in each case, a "“Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders”), but subject to the satisfaction of each of the following conditions:
(Aa) Agent shall receive reasonable at least seven (and, in any event, not less than 14 days'7) days prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description draft of the proposed acquisition agreement for such proposed Permitted Acquisition;
(Bb) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower the Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(Dc) no additional Indebtedness, Guaranteed IndebtednessGuaranty Obligations, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target the Borrowers after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise the Loan made hereunder, or (B) other Indebtedness, Guaranty Obligations, contingent obligations and other liabilities permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Targethereunder;
(Ed) the sum of all amounts such Permitted Acquisition shall have a purchase price (whether payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtednesscash, liabilities and contingent obligations incurred Stock, Indebtedness or assumed other form of consideration) in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed an amount less than $5,000,0002,500,000, and such purchase price, when added to the sum of such amounts for purchase price paid in all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,0007,500,000;
(Fe) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances) and Liens otherwise permitted hereunder;
(f) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto, and the Borrowers shall have executed such documents and taken such actions as may be required by Agent in connection therewith (including, without limitation, adequate UCC financing statements and assignments);
(Gg) Concurrently with delivery of the notice referred to in clause subsection (Aa) above, Borrower the Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:, a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its consolidated Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Advances in connection therewith, and such Acquisition Pro Forma shall reflect that (i) on a pro forma basis, the Borrowers would have been in compliance with the Financial Covenants for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Section 5.1(a) prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Advances funded in connection therewith as if made on the first day of such period), and (ii) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition, and certified by the President or Chief Financial Officer of Holdings to the effect that: (A) each Borrower (after taking into consideration all rights of contribution and indemnity any Borrower has against Parent and any other Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (B) the Acquisition Pro Forma fairly presents in all material respects the financial condition of the Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; and (C) no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(h) at least one (1) Business Day prior to the date of such Permitted Acquisition, Agent shall have received the following acquisition documents, in form and substance reasonably satisfactory to Agent (collectively, the “Acquisition Documents”):
(i) a copy of the fully-executed complete and final purchase agreement and bxxx of sale relating to such Permitted Acquisition, including, without limitation, all exhibits and schedules thereto and related documents and agreements;
(ii) Lien searches on the Target (and any dealers from whom the Target acquired such Alarm Contracts if the two entities are different) and its assets, in form and substance (and with results) satisfactory to Agent, and releases, in form and substance satisfactory to Agent all Liens disclosed in such searches;
(iii) a duly completed report, in form and substance reasonably satisfactory to Agent, summarizing the financial and operation details of such acquisition (an “Acquisition Report”), including, without limitation, as attachments thereto (1) evidence of the filing of either a blanket or precautionary UCC-1 financing statements against the related dealer, in the appropriate jurisdiction, covering all of the dealers Alarm Contracts or listing such the Alarm Contracts being acquired, as applicable, and (2) the related non-solicitation agreement (which agreement shall be in form and substance reasonably satisfactory to Agent);
(iv) a sampling, if requested by the Agent, of certified true and correct copies of the Alarm Contracts, together with evidence of delivery of originals pursuant to any required Off Site Storage Agreement; and
(v) if any of the acquired Alarm Contracts relate to alarm systems located in a state in which such Borrower does not operate as of the Closing Date, Borrower will deliver to the Agent evidence that such Borrower has all Governmental Approvals necessary with respect to such acquisition and that Agent shall not be required to obtain any Governmental Approval in order to take or perfect its Lien on such Collateral or enforce its remedies with respect thereto, together with such other evidence of compliance with the Laws of such new state (including without limitation licensing Laws) as Agent may reasonably require, including, without limitation, opinions of counsel relating thereto;
(vi) evidence of such approvals and consents as may be required in connection with such proposed transaction and evidence that the parties from whom such assets are being acquired were properly licensed and qualified to do business in all relevant jurisdictions; and
(vii) such other reports, certificates, filings, documents, agreements, opinions of counsel and information as the Agent may require in connection therewith, with all such items to be in form and substance satisfactory to the Agent.
(i) as applicable, the conditions set forth in Section 6.11 shall be satisfied as of the closing date of the Permitted Acquisition; and
(j) Borrowers shall collaterally assign non-competition agreements or restrictive covenants arising out of the Permitted Acquisition.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall, nor shall such Credit Party permit any of its Subsidiaries to, directly or indirectly, by operation of law or otherwise, (ax) form or acquire any Subsidiary, or (by) merge or amalgamate with, consolidate with, acquire all or substantially all of the assets or Stock Equity Interests of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing, except:
(i) U.S. Borrower or any other Credit Party may acquire all or substantially all of the assets or all of the Stock Equity Interests of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) In the case of any Permitted Acquisition in excess of $15,000,000 Administrative Agent shall receive reasonable at least ten (and, in any event, not less than 14 days'10) Business Days’ (or such shorter period as may agreed by Administrative Agent) prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower Holdings and Target) shall not exceed $5,000,000, in connection with (i) Permitted Joint Venture Acquisitions (excluding the Initial Permitted Joint Venture Acquisitions) and the sum of such amounts for all (ii) Permitted Acquisitions shall, to the extent the aggregate amount thereof exceeds $10,000,000 in any Fiscal Year shall not exceed $15,000,000Year, be treated as a dollar-for-dollar decrease in the maximum amount available for Capital Expenditures for purposes of complying with clause (a) of Annex F;
(FC) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(GD) Concurrently with delivery at the closing of the notice referred any Permitted Acquisition (or 30 days or such longer period as Administrative Agent may agree to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:its reasonable
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 The Borrower shall not (and shall not suffer or 6.8permit any of its Domestic Subsidiaries to), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, liquidate into, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquirewith, any Person. Notwithstanding the foregoingPerson or acquire any Subsidiary; provided that:
(ia) any Domestic Subsidiary of the Borrower may merge, consolidate with or liquidate into any other Domestic Subsidiary of the Borrower; and
(b) the Borrower or any of its Domestic Subsidiaries may acquire all or substantially all of the assets or all of the Stock or other ownership interests of any Person (the "“Target") (”), in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but case subject to the satisfaction of each of the following conditions:conditions of this Section 6.1 (any such acquisition of a Target, a “Permitted Acquisition”):
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bi) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by the Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentEffective Date, and which businesses business would not subject the Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to the Borrower prior to such Permitted Acquisition;
(Cii) the Fixed Charge Coverage Ratio for each Rolling Period at the end of each of the four Fiscal Quarters ending immediately following the closing of such Permitted Acquisition and the payment of any consideration in connection therewith shall be consensual projected to be equal to or greater than 1.00 to 1.00;
(iii) at all times during the thirty (30) days prior to the actual date of consummation of such Permitted Acquisition and the payment of any consideration in connection therewith and immediately following the actual date of consummation of such Permitted Acquisition and the payment of any consideration in connection therewith, Net Borrowing Availability shall have been approved by be more than the Target's board greater of directors (or comparable governing bodyA) 30% of the Maximum Amount, and (B) $30,000,000 (in each case, taking into account the consummation and payment);
(Div) the Borrower shall deliver to Agent, at least five (5) days prior to the consummation of such Permitted Acquisition, a certificate of the chief financial officer of the Borrower, in form and substance acceptable to the Agent, certifying that the above conditions in Section 6.1(b)(ii) and (iii) have been or will be met (and showing in reasonable detail the calculations used in determining compliance);
(v) with respect to any Permitted Acquisition involving the purchase of assets or Stock by the Borrower, the Agent shall have received, (A) prior to the date of such Permitted Acquisition, drafts of the acquisition agreement for such Permitted Acquisition and of all related agreements and instruments, and (B) no additional Indebtednesslater than five (5) Business Days after the date of such Permitted Acquisition, Guaranteed Indebtednesscopies of the executed acquisition agreement, contingent related agreements and instruments for such Permitted Acquisition; 37
(vi) the Borrower shall have complied with its obligations or other liabilities shall be incurredunder Sections 5.10, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower 5.15 and Target 5.17 with respect to such Permitted Acquisition; and
(vii) both before and after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3no Event of Default shall have occurred and be continuing or will result therefrom; provided, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses that, notwithstanding the foregoing, the Inventory of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) Target shall not exceed $5,000,000, be included in Eligible Inventory without the prior written consent of the Agent and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Synnex Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 Without the prior written consent of the Agent (which consent may be provided or 6.8withheld in the Agent's sole discretion), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, or (c) other than purchases of Inventory and licenses of Intellectual Property, in each case in the ordinary course of business consistent with practices as in effect on the date hereof, purchase assets from any Person if (i) such purchase is not a Capital Expenditure or (ii) the amount paid for such purchase does not reduce the EBITDA, during the period such purchase is made and by the amount paid for such purchase, of the Credit Party which makes such purchase. Notwithstanding the foregoing:
, Borrower, may (i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with and (ii) make Permitted Intellectual Property Acquisitions from any Person (a "Seller"), in the consent case of Requisite Lenders or without consent each of Agent or Requisite Lenders, but (i) and (ii) subject to the satisfaction of each of the following conditions:
(Ai) in the case of a Permitted Acquisition, Agent shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) in the case of a Permitted Intellectual Property Acquisition, promptly following the consummation of such Permitted Intellectual Property Acquisition, Agent shall receive notice thereof, which notice shall include a reasonably detailed description thereof;
(iii) in the case of a Permitted Acquisition, such Permitted Acquisition shall only involve assets located in the United States or Canada and solely comprising a businessbusiness of distributing (exclusive of distributing via internet) and/or publishing of music, videogames, software and/or videos, or those the assets of a such business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject 35 Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Civ) such Permitted Acquisition transaction shall be consensual and shall have been approved by the Target's or Seller's board of directors (or comparable governing body)directors;
(Dv) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations Contingent Obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target (if applicable) after giving effect to such Permitted Acquisitiontransaction, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and , to the extent approved by the Agent in writing in its sole direction and otherwise permitted hereunder, unsecured Indebtedness of the TargetTarget (if applicable) to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such transaction;
(Evi) (a) the sum of all amounts payable in connection with any single Permitted Acquisition such transaction (including all transaction costs and all Indebtedness, liabilities and contingent obligations Contingent Obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower Borrower, its Subsidiaries and TargetTarget (if applicable)) shall not exceed $5,000,000, 1,000,000 and the sum of such all amounts for payable in connection with all Permitted Acquisitions and Permitted Intellectual Property Acquisitions (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower, its Subsidiaries and Target) (if applicable) during any Fiscal Year shall not exceed $15,000,0002,500,000 in the aggregate (provided, however, that this clause (a) shall not apply to Permitted Acquisitions consummated on or prior to the Acquisition Loan Funding Termination Date) and (b) the sum of all amounts payable in connection with any Permitted Acquisition consummated on or prior to the Acquisition Loan Funding Termination Date (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower, its Subsidiaries and Target (if applicable)) shall not exceed $20,000,000 and the sum of all amounts payable in connection with all Permitted Acquisitions consummated on or prior to the Acquisition Loan Funding Termination Date (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower, its Subsidiaries and Target) (if applicable) during any Fiscal Year shall not exceed $40,000,000 in the aggregate;
(Fvii) in the case of a Permitted Acquisition, the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(viii) the business and assets acquired in such Permitted Acquisition transaction shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gix) Concurrently at or prior to the closing of each such transaction, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(x) in the case of a Permitted Acquisition, concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered deliver to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $22,500,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period and calculated as if there has been no deteriorations from the date hereof in the working capital position of Borrower) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $22,500,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G to the Credit Agreement for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to clause (a) of Annex E to the Credit Agreement prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the 3 year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower is Solvent immediately following the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower and its Subsidiaries subsequent to the date thereof based 37 upon the historical performance of Borrower and its Subsidiaries and the Target and show that Borrower and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Annex G to the Credit Agreement for the 3-year period thereafter; and (z) Borrower and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(xi) in the case of any Permitted Intellectual Property Acquisition, the average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Intellectual Property Acquisition would have exceeded $22,500,000 on a pro forma basis (after giving effect to such Permitted Intellectual Property Acquisition and all Loans funded in connection therewith as if made on the first day of such period and calculated as if there has been no deteriorations from the date hereof in the working capital position of Borrower);
(xii) in the case of a Permitted Acquisition, on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9; and
(xiii) at the time of such transaction and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory of a Target shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Navarre Corp /Mn/)
Mergers, Subsidiaries, Etc. Except as otherwise expressly permitted under Sections 6.2 or 6.8by Section 6.5, no such Credit Party shall not (and shall cause each Subsidiary of such Credit Party not to) directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or capital Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the generality of the foregoing:
(i) , Borrower may form a direct and wholly-owned Subsidiary, or acquire all of the capital Stock or all or substantially all of the assets or all of the Stock of any Person (such Subsidiary or Person being the "Target") (in each case), a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:conditions (such formation or acquisition being a "Permitted Acquisition"):
(Ai) Agent Co-Agents shall receive reasonable (and, in any event, not less than 14 at least 30 days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisitionthereof;
(Bii) such Permitted Acquisition the assets of the Target (A) shall only involve assets either be (1) located in the United States or such other jurisdiction under which Agent, on behalf of Co-Agents and comprising Lenders, will receive a first priority perfected Lien thereon, or (2) not located in the United States or such other jurisdiction described above and have a fair market value at all times of less than $***, and (B) shall comprise a business, or those assets of a business, of the type types or similar to the types engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject any Co-Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) with respect to an acquisition, such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with (A) any single one Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, *** and the sum of (B) all such amounts for all Permitted Acquisitions in any Fiscal Year during the term hereof shall not exceed $15,000,000***;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 Without the prior written consent of the Agent (which consent may be provided or 6.8withheld in the Agent's sole discretion), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, or (c) other than purchases of Inventory and licenses of Intellectual Property, in each case in the ordinary course of business consistent with practices as in effect on the date hereof, purchase assets from any Person if (i) such purchase is not a Capital Expenditure or (ii) the amount paid for such purchase does not reduce the EBITDA, during the period such purchase is made and by the amount paid for such purchase, of the Credit Party which makes such purchase. Notwithstanding the foregoing:
, Borrower, may (i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with and (ii) make Permitted Intellectual Property Acquisitions from any Person (a "Seller"), in the consent case of Requisite Lenders or without consent each of Agent or Requisite Lenders, but (i) and (ii) subject to the satisfaction of each of the following conditions:
(Ai) in the case of a Permitted Acquisition, Agent shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) in the case of a Permitted Intellectual Property Acquisition, promptly following the consummation of such Permitted Intellectual Property Acquisition, Agent shall receive notice thereof, which notice shall include a reasonably detailed description thereof;
(iii) in the case of a Permitted Acquisition, such Permitted Acquisition shall only involve assets located in the United States or Canada and solely comprising a businessbusiness of distributing (exclusive of distributing via internet) and/or publishing of music, videogames, software and/or videos, or those the assets of a such business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Civ) such Permitted Acquisition transaction shall be consensual and shall have been approved by the Target's or Seller's board of directors (or comparable governing body)directors;
(Dv) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations Contingent Obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target (if applicable) after giving effect to such Permitted Acquisitiontransaction, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and , to the extent approved by the Agent in writing in its sole direction and otherwise permitted hereunder, unsecured Indebtedness of the TargetTarget (if applicable) to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such transaction;
(Ea) the sum of all amounts payable in connection with any single Permitted Acquisition such transaction (including all transaction costs and all Indebtedness, liabilities and contingent obligations Contingent Obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower Borrower, its Subsidiaries and TargetTarget (if applicable)) shall not exceed $5,000,000, 1,000,000 and the sum of such all amounts for payable in connection with all Permitted Acquisitions and Permitted Intellectual Property Acquisitions (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower, its Subsidiaries and Target) (if applicable) during any Fiscal Year shall not exceed $15,000,0002,500,000 in the aggregate (provided, however, that this clause (a) shall not apply to Permitted Acquisitions consummated on or prior to the Acquisition Loan Funding Termination Date) and (b) the sum of all amounts payable in connection with any Permitted Acquisition consummated on or prior to the Acquisition Loan Funding Termination Date (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower, its Subsidiaries and Target (if applicable)) shall not exceed $20,000,000 and the sum of all amounts payable in connection with all Permitted Acquisitions consummated on or prior to the Acquisition Loan Funding Termination Date (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower, its Subsidiaries and Target) (if applicable) during any Fiscal Year shall not exceed $40,000,000 in the aggregate;
(Fvii) in the case of a Permitted Acquisition, the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(viii) the business and assets acquired in such Permitted Acquisition transaction shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gix) Concurrently at or prior to the closing of each such transaction, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(x) in the case of a Permitted Acquisition, concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered deliver to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $22,500,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period and calculated as if there has been no deteriorations from the date hereof in the working capital position of Borrower) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $22,500,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G to the Credit Agreement for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to clause (a) of Annex E to the Credit Agreement prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the 3 year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower is Solvent immediately following the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower and its Subsidiaries subsequent to the date thereof based upon the historical performance of Borrower and its Subsidiaries and the Target and show that Borrower and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Annex G to the Credit Agreement for the 3-year period thereafter; and (z) Borrower and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(xi) in the case of any Permitted Intellectual Property Acquisition, the average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Intellectual Property Acquisition would have exceeded $22,500,000 on a pro forma basis (after giving effect to such Permitted Intellectual Property Acquisition and all Loans funded in connection therewith as if made on the first day of such period and calculated as if there has been no deteriorations from the date hereof in the working capital position of Borrower);
(xii) in the case of a Permitted Acquisition, on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9; and
(xiii) at the time of such transaction and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory of a Target shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Navarre Corp /Mn/)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower, provided that Verdant shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
(i) , Verdant or any Subsidiary of Verdant which is a Borrower may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmenta similar related business, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3the Loans made hereunder to fund such Permitted Acquisition, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and accrued expenses of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and (C) other Indebtedness, Guaranteed Indebtedness obligations and liabilities permitted by Agent and Requisite Lenders in their sole discretion;
(Ev) the sum of all amounts payable in connection with any single such Permitted Acquisition shall be structured as an asset acquisition by Verdant or as an acquisition of one hundred percent (including all transaction costs 100%) (or, in the discretion of Agent and all IndebtednessRequisite Lenders, liabilities such lower percentage) of the capital stock of the Target directly by Verdant; provided that if any material portion of the Target's business or assets shall be held through any Subsidiary of the Target, at the discretion of Agent and contingent obligations incurred or assumed in connection therewith or otherwise reflected in Requisite Lenders, such Subsidiary shall become a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000under this Agreement;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) Concurrently with delivery at or prior to the closing of the notice referred to in clause (A) aboveany Permitted Acquisition, Borrower shall have delivered to Agent, in form on behalf of itself and substance reasonably satisfactory Lenders, will be granted a first priority perfected Lien (subject to Agent:Permitted
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, Subsidiary (other than the formation or acquisition of a Subsidiary in full compliance with Section 5.10 or the formation of the Insurance Subsidiary in accordance with an Approved Insurance Plan) or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any PersonPerson (other than the merger of a wholly owned Subsidiary of a Borrower with and into another wholly owned Subsidiary of a Borrower that is a Guarantor). Notwithstanding the foregoing:
(i) Borrower , Borrowers may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:conditions (which conditions shall apply in the case of any such acquisition irrespective of whether or not such acquisition is funded in whole or in part with the proceeds of any Loan):
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 A) at least 15 days') ’ prior written notice of the expected consummation date of such proposed Permitted AcquisitionAcquisition if the purchase price paid and/or payable (whether in cash, Stock or other form of consideration, including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and Target) is equal to or less than $5,000,000, which notice shall include (x) a reasonably detailed description of such proposed Permitted Acquisition, (y) calculations showing covenant compliance with the financial covenants in Annex G as of the most recently ended Fiscal Month (on a pro forma basis after giving effect to the proposed Acquisition and any Loan Advance to be requested in connection therewith), and (z) a draft of the acquisition agreement or a letter of intent if a draft of the acquisition agreement is not available, and (B) at least 45 days’ prior written notice of such proposed Permitted Acquisition if the purchase price paid and/or payable (whether in cash, Stock or other form of consideration, including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and Target) is greater than $5,000,000, which notice shall include (x) a reasonably detailed description of such proposed Permitted Acquisition, (y) calculations showing covenant compliance with the financial covenants in Annex G as of the most recently ended Fiscal Month (on a pro forma basis after giving effect to the proposed Acquisition and any Loan Advance to be requested in connection therewith), and (z) a draft of the acquisition agreement or a letter of intent if a draft of the acquisition agreement is not available;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition, and (C) unsecured Indebtedness, “earnouts” and similar contingent payment obligations of any Credit Party, provided that any such Indebtedness is and at all times remains subordinated to the Obligations as to right and time of payment and as to any other rights and remedies thereunder pursuant to a subordination agreement substantially in the form of Exhibit 6.1 (such Indebtedness is referred to herein as “Seller Subordinated Debt”);
(Ev) the sum purchase price paid and/or payable (whether in cash, Stock or other form of all amounts payable consideration) in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, and 100,000,000 in the sum of such amounts aggregate for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000during the term hereof;
(Fvi) if the purchase price paid and/or payable (whether in cash, Stock or other form of consideration, including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and Target) in respect of such proposed Permitted Acquisition is greater than $5,000,000 individually or, together with all other Permitted Acquisitions since the Closing Date, is greater than $15,000,000 in the aggregate, immediately prior to and after giving effect to such Permitted Acquisition Borrowers shall have Excess Availability of not less than $1,000,000, as demonstrated in a certificate delivered of the Chief Financial Officer, or, in his absence, the Chief Accounting Officer, of Borrowers in form and substance reasonably satisfactory to Agent;
(vii) the Borrowers’ pro forma of Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition;
(viii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gix) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto (including the assets and Stock of the Target), and Guarantors and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(x) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Holdings and its Subsidiaries would be in compliance with the financial covenants set forth in paragraphs (c) and (d) of Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the 1 year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Holdings and each Borrower to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents in all material respects the financial condition of Holdings and Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates at such time of the future financial performance of Holdings and Borrowers subsequent to the date thereof based upon the historical performance of Holdings, Borrowers and the Target and show that Guarantors and Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the 3-year period thereafter; and (z) Holdings and Borrower have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(xi) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9; and
(xii) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts of the Target shall not be included in Eligible Accounts unless and until Agent has conducted a collateral audit of such Accounts (at Borrowers’ expense), with results satisfactory to Agent in its reasonable credit judgment. The collateral audit rights of Agent provided for in this paragraph are in addition to, and not in limitation of, any other rights that Agent has in this Agreement to conduct audits at Borrowers’ expense.
Appears in 1 contract
Samples: Credit Agreement (Pediatric Services of America Inc)
Mergers, Subsidiaries, Etc. Except as otherwise expressly permitted under Sections 6.2 or 6.8by Section 6.5, no such Credit Party shall not (and shall cause each Subsidiary of such Credit Party not to) directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or capital Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the generality of the foregoing:
(i) , Borrower may form a direct and wholly-owned Subsidiary, or acquire all of the * Material has been omitted pursuant to a request for confidential treatment. capital Stock or all or substantially all of the assets or all of the Stock of any Person (such Subsidiary or Person being the "Target") (in each case), a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:conditions (such formation or acquisition being a "Permitted Acquisition"):
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 at least 30 days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisitionthereof;
(Bii) such Permitted Acquisition the assets of the Target (A) shall only involve assets either be (1) located in the United States or such other jurisdiction under which Agent, on behalf of Co-Agents and comprising Lenders, will receive a first priority perfected Lien thereon, or (2) not located in the United States or such other jurisdiction described above and have a fair market value at all times of less than $****, and (B) shall comprise a business, or those assets of a business, of the type types or similar to the types engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject any Co-Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) with respect to an acquisition, such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with (A) any single one Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, **** and the sum of (B) all such amounts for all Permitted Acquisitions in any Fiscal Year during the term hereof shall not exceed $15,000,000****;
(Fvi) the Target shall not have incurred an operating loss of more than $**** for the trailing 12-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) Concurrently at the closing of any Permitted Acquisition, either (A) the Target shall become a "Guarantor" and "Credit Party" hereunder, Agent will be granted, for the benefit of Co-Agents and Lenders, a first priority perfected Lien (subject to Permitted * Material has been omitted pursuant to a request for confidential treatment. Encumbrances) in the assets and capital Stock of the Target, and each Credit Party and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith, or (B) with the written consent of Agent and Supermajority Revolving Lenders, the Target shall become an "Excluded Subsidiary" hereunder; provided, that any amounts payable in connection with such Permitted Acquisition are permitted under Section 6.2;
(ix) concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial data, which shall be complete and shall accurately and fairly represent the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (1) Available Liquidity for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $150,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Available Liquidity of $150,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (2) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition, and Borrower would have been in compliance with the financial covenants set forth in Annex G that are required to be tested for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period, including for purposes of determining Available Liquidity during such period);
(B) for each Permitted Acquisition for which total cash and non-cash consideration paid by Credit Parties is in excess of $1,000,000, updated versions of the most recently delivered Projections covering the one year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a statement of the chief financial officer of Borrower to the effect that:
(1) Borrower (after taking into consideration all rights of contribution and indemnity of Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (2) the Acquisition Pro Forma fairly presents the financial condition of Borrower on a consolidated basis as of the date thereof after giving effect to the Permitted Acquisition; (3) the Acquisition Projections, if any, are reasonable estimates of the future financial performance of Borrower and its Subsidiaries subsequent to the date thereof based upon the historical performance of Borrower, its subsidiaries and the Target, and show (without guaranty of) that Borrower shall continue to be in compliance with the financial covenants set forth in Annex G for the three year period thereafter; and (4) Borrower has completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Co-Agents shall have received, in form and substance satisfactory to Co-Agents, all opinions, certificates, lien search results and other documents reasonably requested by Co-Agents; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. In no event shall the Accounts of Target be included in Eligible Accounts without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except (a) Neither Borrower nor the Guarantors, except as otherwise specifically permitted under Sections 6.2 or 6.8subsections (b), no Credit Party (d) and (e) of this Section 7.1 below, shall directly or indirectly, by operation of law or otherwise, (ai) form or acquire any Subsidiary, or ; (bii) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
; or (iiii) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person Person. Borrower may engage in a transaction described in this subsection (the "Target") (in each case, a "Permitted Acquisition"a) with the prior written consent of Requisite Lenders or without consent of Agent or the Requisite Lenders, but subject to Borrower’s compliance with subsection (c) of this Section 7.1 below.
(b) Subject to Borrower’s compliance with the satisfaction provisions of each subsection (c) of this Section 7.1 below, Borrower may engage in transactions described in subsection (a) of this Section 7.1 above without the following conditionsprior written consent of Administrative Agent and the Requisite Lenders if (i) any such single transaction occurring prior to September 30, 2005 does not involve consideration of greater than $5,000,000 and any such single transaction occurring after September 30, 2005 does not involve consideration of greater than $7,500,000 and (ii) all such transactions collectively do not involve consideration of greater than $15,000,000 in the aggregate.
(c) In no event shall Borrower or Guarantors engage in any transaction described in subsections (a) or (b) of this Section 7.1 above with any Person unless:
(Ai) Agent shall receive reasonable (and, Borrower and Guarantors are then in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentcompliance, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisitiontransaction be in compliance, except (x) Indebtedness otherwise permitted with all representations, warranties and covenants under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Targetthis Agreement;
(Eii) Borrower shall provide to Administrative Agent not less than ten (10) Business Days prior to closing of the proposed transaction a pro forma financial covenant compliance certification which demonstrates compliance with the Financial Covenants of Borrower hereunder after giving effect to such transaction;
(iii) such Person is engaged in the same or a substantially similar business as that of the Borrower; and
(iv) such Person has twelve (12) months of positive EBITDA for the fiscal period ending immediately prior to the date of such transaction.
(d) Notwithstanding the provisions of subsection (a) of this Section 7.1 above, Borrower may form Subsidiaries without the requirement of consent of Administrative Agent or any of the Lenders and without compliance with the provisions of subsection (c) of this Section 7.1 above in accordance with the following provisions:
(i) Borrower may form domestic United States Subsidiaries provided that (A) the sum of all amounts payable Borrower’s investment in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall such Subsidiary does not exceed $5,000,0005,000, and the sum of (B) such amounts for all Permitted Acquisitions Subsidiary does not engage in any Fiscal Year business or engage in any of the transactions described in subsection (a) of this Section 7.1 above without complying with the provisions subsections (a), (b) and (c) of this Section 7.1 above; and
(ii) Borrower may form a Foreign Subsidiary solely for purposes of conducting business in Europe provided that at no time shall not Borrower’s investment in such Foreign Subsidiary exceed $15,000,000;5,000,000 and such Foreign Subsidiary shall become a Guarantor hereunder at such time and to the extent it is required to do so under the provisions of Section 2.16 above. Borrower shall provide written notice to Administrative Agent within ten (10) Business Days of the formation of a Foreign Subsidiary.
(Fe) Notwithstanding the business and assets acquired in such Permitted Acquisition shall be free and clear provisions of all Liens subsection (other than Permitted Encumbrances);
(Ga) Concurrently with delivery of the notice referred to in clause (A) this Section 7.1 above, Borrower shall have delivered may acquire certain of the assets and properties of A. B. Dick Company and A. B. Dick Company Canada, Ltd. (including the stock of A. B. Dick, Ltd.) for an aggregate purchase price not to exceed $50,000,000, upon such terms and conditions as are acceptable to Administrative Agent, in form and substance reasonably satisfactory to Agent:.
Appears in 1 contract
Samples: Credit Agreement (Presstek Inc /De/)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8Borrower shall not, no Credit Party nor shall it permit any of its Subsidiaries to, directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or Subsidiary (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any PersonPerson (provided that any Subsidiary of Borrower may be merged into Borrower with Borrower being the surviving entity and provided that ACMI Canada, Inc. may be wound up and dissolved in accordance with the applicable laws of the State of Colorado), or (c) make Capital Expenditures (subject to the limits set forth in Section (a) of Annex G). Notwithstanding the foregoing:
(i) Borrower , Borrower, may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) The Target must be a franchisee of Borrower on the Closing Date;
(ii) Agent shall receive reasonable at least twenty (and, in any event, not less than 14 days'20) Business Days prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Biii) such Permitted Acquisition shall only involve assets located in the United States and/or Canada and comprising a business, or those assets of a business, of or substantially related or incidental to the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Civ) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Dv) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition, and (C) Subordinated Debt in favor of the seller;
(Evi) the sum of all amounts payable in connection with all Permitted Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower and Target) other than the Senarc Acquisition, shall not exceed $1,000,000 during any single Permitted Fiscal Year.
(vii) the sum of all amounts payable in connection with the Senarc Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower and Target), shall not exceed $1,300,000 and the portion of the amount payable in connection with the Senarc Acquisition in cash (including lease buyouts) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000500,000;
(Fviii) the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's Financial Statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(ix) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted EncumbrancesLiens permitted under Section 6.7));
(Gx) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Liens permitted under Section 6.7) in the assets acquired pursuant thereto or in the assets and capital stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(xi) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and (y) Borrower would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower subsequent to the date thereof based upon the historical performance of Borrower and the Target and show that Borrower shall continue to be in compliance with the financial covenants set forth in Annex G for the three (3) year period thereafter; and (z) Borrower has completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(xii) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent;
(xiii) with respect to the Senarc Acquisition only, such Permitted Acquisition must be completed on or before June 30, 2001; and
(xiv) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwiseotherwise without the prior written consent of the Requisite Lenders (other than the Related Transactions), (a) form or acquire any Subsidiary, Foreign Subsidiary or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person; provided that: any Credit Party may merge, consolidate or liquidate with another Credit Party; provided that if Borrower is a party to such merger or consolidation, Borrower shall be the surviving entity. Notwithstanding the foregoing:
, Borrower (i) Borrower or Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to Borrower), may acquire all or substantially all of the assets or all of the Stock of of, any Person (the "“Target"”) or consummate any Theater Acquisition (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada, shall be in a competitive free film zone and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under pursuant to Section 6.3, (y6.7(c) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000be funded solely with the cash proceeds of equity issuances, or cash contributions to Borrower, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,00015,000,000 individually and $25,000,000 in the aggregate for all such Permitted Acquisitions;
(Fvi) the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition and after giving effect to cost savings, synergies and other savings approved by Agent;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Holdings and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Holdings and its Subsidiaries would have had a ratio of Funded Debt to EBITDA not in excess of 2.45 to 1.0 for the two quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), (y) average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $2,500,000 on a pro forma basis (after giving effect to such Permitted Acquisition as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $2,500,000 shall continue for at least ninety (90) days after the consummation of such Permitted Acquisition, and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Holdings and Borrower to the effect that: (w) Borrower (after taking into consideration all rights of contribution and indemnity Borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Holdings and Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Holdings and Borrower subsequent to the date thereof based upon the historical performance of Holdings, Borrower and the Target and show that Holdings and Borrower shall continue to be in compliance with the financial covenants set forth in Annex G for the 1-year period thereafter; and (z) Holdings and Borrower has completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall or shall allow any of their Subsidiaries to directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary (other than the formation of Subsidiaries in the ordinary course of Borrowers' business and consistent with past practice; PROVIDED any such new Subsidiary, to the extent the same is a US Subsidiary, becomes a Borrower hereunder pursuant to the terms of SECTION 1.18, and 100% of the outstanding Stock of any US Subsidiary and 65% of the Stock of any such Subsidiary which is a Foreign Subsidiary of a Borrower is pledged to Agent, in form and content acceptable to Agent), or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except any Subsidiary of any Borrower may merge with such Borrower or any wholly owned Subsidiary of such Borrower, PROVIDED such Borrower or wholly owned Subsidiary shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "TargetTARGET") (in each case, a "PERMITTED ACQUISITION") if the sum of all amounts payable in connection with all Permitted Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and Target) during the term hereof does not exceed $5,000,000 and the portion thereof allocable to goodwill and intangible assets for all such Permitted Acquisitions does not exceed $2,000,000; AND EITHER:
(a) the sum of the amounts payable in connection with any one such Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and Target) does not exceed $1,000,000, and at or prior to the closing of any such Permitted Acquisition", the Target will become a Borrower hereunder pursuant to the terms of SECTION 1.18, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) with in all assets acquired pursuant thereto or in the consent assets and Stock of Requisite Lenders or without consent of the Target, and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent or Requisite Lenders, but in connection therewith; OR
(b) the Permitted Acquisition is subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition, and (C) Subordinated Debt specifically permitted under SECTION 6.3(a)(vii) below;
(Ev) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) Target shall not exceed $5,000,000have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the sum date of consummation of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000Acquisition;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) Concurrently at or prior to the closing of any Permitted Acquisition, the Target will become a Borrower hereunder pursuant to the terms of SECTION 1.18, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(viii) concurrently with delivery of the notice referred to in clause CLAUSE (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "ACQUISITION PROJECTIONS") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(B) a certificate of the chief financial officer of Borrowers to the effect that: (w) Borrowers will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Projections fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in ANNEX G for the 3-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(ix) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent or the Requisite Lenders including those specified in the last sentence of SECTION 5.9; and
(x) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall, nor shall it cause or permit any Subsidiaries to, directly or indirectly, by operation of law or otherwise, (ai) form or acquire any Subsidiary, or (bii) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding , except (A) any Credit Party may merge with another Credit Party, provided that Borrower shall be the foregoing:
survivor of any such merger to which it is a party; (B) any Credit Party may form one or more wholly owned Domestic Subsidiaries so long as (i) no Event of Default shall have occurred and be continuing or result therefrom, (ii) SCIL Agent receives an Officer Certificate of Borrower may acquire all or substantially all of executed by the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors Chief Financial Officer of Borrower, are reasonably relatedor another responsible officer of Borrower having substantially the same authority and responsibility or otherwise acceptable to SCIL Agent, ancillary or complimentary theretocertifying as to the purpose of such New Subsidiary, or reasonable extensions thereof, including without limitation the leasing amount of medical equipmentcash and fair market value of any other assets being contributed to such New Subsidiary and Borrower’s compliance with the terms of the restrictions on such investments in Section 6.2 hereof, and which businesses would not subject (iii) such Subsidiary shall have become a Secured Guarantor and Borrower and/or its Subsidiaries shall have caused to be executed and delivered such documents and taken such actions as may be reasonably required by SCIL Agent or any Lender to regulatory or third party approvals in connection with the exercise therewith, including, without limitation, delivery of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtednessfinancing statements, Guaranteed Indebtednesssupplemental security agreements, contingent obligations or other liabilities shall be incurredmortgages, assumed or shall otherwise be reflected on joinder agreements, a consolidated balance sheet of Borrower and Target after giving effect to such Permitted AcquisitionGuaranty, except (x) Indebtedness otherwise permitted under Section 6.3environmental indemnity agreements, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000blocked account agreements, and the sum of such amounts for all Permitted Acquisitions other documents, certificates and opinions, in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, each case in form and substance acceptable reasonably satisfactory to SCIL Agent:; (C) Borrower or any Secured Guarantor may consummate a Permitted Loan Funded Acquisition; and (D) any Foreign Subsidiary may consummate a Permitted Non-Loan Funded Acquisition.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no (a) No Credit Party nor any of its Subsidiaries shall directly or indirectly, by operation of law or otherwise, except in the case of Special Purpose Corporation, (ai) form or acquire any Subsidiary, or (bii) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person, other than (A) a merger of an Other Subsidiary, with a Credit Party or other person in connection with the sale or other disposition of the assets or Stock of the Other Subsidiary, (B) the investment in the distributor of Borrower's products in Ireland contemplated by Section 6.2(g) and (C) the acquisition of other current -------------- assets pursuant to clause (c)(ii) of Section 6.2. -------------- -----------
(b) Notwithstanding the foregoingprohibitions in clause (a) of this Section 6.1, ---------- ----------- Borrower may consummate a Reincorporation Merger, subject to satisfaction of each of the following conditions:
(i) Agent shall have received written confirmation that any changes to the charter and by-laws of Borrower resulting from the Reincorporation Merger which would adversely affect Agent or Lenders or any Credit Party's duty or ability to repay the Obligations, are satisfactory in form and substance to Requisite Lenders;
(ii) any changes in the capital structure of Borrower after giving effect to the Reincorporation Merger shall be satisfactory to Requisite Lenders;
(iii) at least ten (10) Business Days prior to the effectiveness of the Reincorporation Merger, Agent shall have received a copy for each Lender of the following documents, each of which shall be satisfactory in form and substance to Agent (and Agent shall be deemed to have approved each of the following documents absent notice to Borrower to the contrary within ten (10) Business Days after Agent's receipt of the document): (A) the merger agreement and articles of merger with respect to the Reincorporation Merger; (B) good standing certificates (including verification of tax status) in the States of Delaware and California for the Person into which Borrower is to be merged; (C) certificates of qualification to do business in each jurisdiction where such Person's ownership or lease of property or the conduct of its business requires such qualification (unless waived by Agent in its sole discretion), each dated a recent date and certified by the applicable Secretary of State or other authorized Governmental Authority; (D) resolutions of such Person's and Borrower's Board of Directors approving and authorizing the execution, delivery and performance of the merger agreement and the assumption agreement with respect to the Loan Documents, certified as of a recent date by Borrower's and such Person's corporate secretary or an assistant secretary as being in full force and effect without any modification or amendment; (E) signature and incumbency certificates of the officers of such Person executing any of the Loan Documents, certified as of a recent date by such Person's corporate secretary or an assistance secretary as being true, accurate, correct and complete; (F) a duly executed assumption agreement pursuant to which such Person assumes all of the Obligations; and (G) duly executed originals of opinions of Xxxxxx Xxxx & Xxxxxxxx LLP and the General Counsel or an Associate General Counsel of Borrower and such Person with respect to the Reincorporation Merger and its effect on the Loan Documents;
(iv) Agent shall have received a copy of the proxy statement to be delivered to shareholders of Borrower with respect to the Reincorporation Merger on or prior to the date of its mailing to shareholders; and
(v) Borrower and the Person into which Borrower is to be merged shall have executed and delivered to Agent such further instruments and done such further acts as may be necessary or proper in the reasonable opinion of Agent to perfect and protect the security interest of Agent on behalf of itself and Lenders in the Collateral.
(c) Notwithstanding the prohibitions in clause (a) of this Section 6.1, ---------- ----------- Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition", including ------ --------------------- without limitation the acquisition of distribution rights pursuant to clause ------ (c)(i) with the consent of Requisite Lenders or without consent of Agent or Requisite LendersSection 6.2), but subject to the satisfaction of each of the following ------ ----------- conditions:
(Ai) Agent shall receive reasonable at least ten (and, in any event, not less than 14 10) days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentEffective Date, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations (with contingent obligations other than Indebtedness being valued in accordance with GAAP) incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and in the sum case of such amounts for all Permitted Acquisitions in Acquisitions, $25,000,000 during any Fiscal Year shall not exceed and $15,000,000100,000,000 during the term hereof;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) Concurrently (A) at the closing of any Permitted Acquisition of assets or any Permitted Acquisition of Stock of a Target which is to become a Domestic Subsidiary of Borrower, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith, and the Target shall execute a joinder to this Agreement and become a Credit Party hereunder and (B) at or prior to the closing of any Permitted Acquisition of Stock of a Target (other than a Target which is to become a Domestic Subsidiary of Borrower), Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances described in clause (a) of the definition thereof) in the ------ - Stock of the Target, provided that the security interest described in this -------- clause (B) shall not exceed two-thirds of the combined voting power of all Stock ------ - of the Target;
(viii) concurrently with delivery of the notice referred to in clause (Ai) ---------- above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro --------------- Forma"), based on recent financial statements, which shall be complete and ----- shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Borrower and its Subsidiaries would have had a ratio of Funded Debt to Adjusted EBITDA not in excess of 2.25 to 1.0 for the period of four Fiscal Quarters then most recently ended, as reflected in a certificate of the Chief Financial Officer of Borrower delivered to Agent prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), (y) average daily Net Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $18,000,000 on a pro forma basis (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Net Borrowing Availability of $18,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (z) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex H for the four quarter period reflected in the Compliance Certificate ------- most recently delivered to Agent pursuant to Annex E prior to the ------- consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise [Execution Copy] prepared in accordance with the Projections (the "Acquisition Projections") ----------------------- and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower subsequent to the date thereof based upon the historical performance of Borrower and the Target and show that Borrower shall continue to be in compliance with the financial covenants set forth in Annex H for the three (3) year period thereafter; and (z) Borrower has ------- completed its due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(ix) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents (including without limitation environmental audits) reasonably requested by Agent; and
(x) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing . Notwithstanding the foregoing, the assets of the Target shall not be included in the Borrowing Base without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) except as otherwise permitted in connection with a Permitted Acquisition, form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that subject to satisfaction with the Acquisition Conditions, SMP may consummate the Acquisition and any Borrower may merge with another Borrower and any other Credit Party may merge into any Borrower, provided that Borrower Representative shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
foregoing clause (ib) Borrower and subject to the second to last paragraph in this Section 6.1, commencing two years following the closing of the Acquisition, any Borrower, may acquire or, subject to the next paragraph of this Section 6.1, form a Subsidiary to acquire, all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:.
(Ai) Agent shall receive reasonable at least fifteen (and, in any event, not less than 14 days'15) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type types engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(Eiv) the sum purchase price consideration (inclusive of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet assumption of Borrower and Targetliabilities) shall not exceed $5,000,000, 5,000,000 with respect to any Permitted Acquisition and the sum of such amounts $25,000,000 for all such Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000Acquisitions;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gv) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower with respect to any Permitted Acquisition, Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and their respective Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and their respective Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability of all Borrowers for the 30-day period preceding the consummation of such Permitted Acquisition would have exceeded the greater of (i) 7.5% of the Maximum Amount, and (ii) $22,875,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(B) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer or treasurer of each Borrower to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each other Subsidiary of each Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the 3-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(vi) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents relating thereto; and
(vii) at the time of such Permitted Acquisition and after giving effect thereto, (x) Borrowing Availability of all Borrowers exceeds the greater of (i) 7.5% of the Maximum Amount, and (ii) $22,875,000 and (y) no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, (a) the Accounts, Inventory, Equipment and Real Estate of the Target shall not be included in Eligible Accounts, Eligible Inventory, Eligible Equipment and Eligible Real Estate until (x) Agent determines, on the basis of any field examinations and appraisals conducted by it in connection with such Permitted Acquisition, the appropriate advance rates and Reserves applicable thereto and (y) such assets become subject to the first priority perfected security interests of Agent and otherwise meet the eligibility criteria which apply to such assets and (b) whether or not the assets thereof become part of the Borrowing Base, if a new Subsidiary is formed in connection with any Permitted Acquisition, or, if the Permitted Acquisition is of Stock of a Person which, upon consummation thereof, would become a Subsidiary, such Subsidiary shall (i) if a domestic Subsidiary, (x) become a Credit Party hereunder, (y) enter into a guaranty and a security agreement, each in form and substance identical to the Subsidiary Guaranty and the Security Agreement, and (z) take such other action as may be reasonably requested by Agent to have the assets of such Subsidiary become subject to the first priority perfected security interests of Agent, and (ii) if a foreign Subsidiary, take such action as may be reasonably requested by Agent to have 51% of the Stock of such foreign Subsidiary to be pledged to Agent and subject to the first priority perfected security interest of Agent; provided that if such foreign Subsidiary is a "check the box" subsidiary, 100% of the stock shall be pledged to Agent and subject to the first priority perfected security interest of Agent. In addition, notwithstanding the foregoing two year period restriction, Borrowers shall be permitted to acquire the Canadian or Mexican operations of Xxxx Corporation's Aftermarket Engine Management Division prior to the second anniversary of the Acquisition Closing Date provided that (i) the purchase price consideration (inclusive of any assumption of 41 liabilities and any deferred purchase price) from either or both acquisitions does not reduce the amount available to be borrowed by Borrowers under the Revolving Loan facility by more than $3,500,000 from the amounts available to be borrowed without giving effect to the Closing of either or both acquisitions, (ii) no Default or Event of Default has occurred and is continuing or would occur as a result of such proposed acquisition, and (iii) each such acquisition otherwise complies with the provisions of this Section 6.1. After the earlier of (x) June 30, 2003 or (y) the day upon which the Borrower Representative notifies Agent that the Acquisition Agreement has been terminated, in the event the Acquisition has not occurred, then the provisions of Section 6.1 of the Original Credit Agreement (as set forth on Schedule 6.1) shall be the operative provisions for purposes of this Agreement.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except (i) any wholly-owned Domestic Subsidiary of Borrower (other than IC Sensors, Elekon, Entran Devices and Intermediate Holdings) may merge with and into Borrower or another wholly-owned Domestic Subsidiary of Borrower (so long as Borrower is the surviving entity in any merger involving Borrower), (ii) the Credit Parties may consummate the BetaTHERM Reorganization, and (iii) any wholly-owned Foreign Subsidiary of Borrower may merge with another wholly-owned Foreign Subsidiary of Borrower. Notwithstanding the foregoing:
(i) Borrower , Borrower, may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 days') at least 20 Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower the Credit Parties as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Indebtedness or Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) to the extent such Indebtedness otherwise or Guaranteed Indebtedness is permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under 6.3 or Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target6.6;
(Ev) the sum of purchase price and all other amounts payable by the Credit Parties in connection with any single Permitted Acquisition (Acquisitions, including all transaction costs and all IndebtednessLoans made hereunder related thereto, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and 40,000,000 in the sum of such amounts for all Permitted Acquisitions aggregate in any Fiscal Year (and, with respect to Permitted Acquisitions by Foreign Subsidiaries of Borrower, such purchase price shall not exceed $15,000,000be paid from cash and cash equivalents of the Foreign Subsidiaries prior to use of cash and cash equivalents of the Borrower and its Domestic Subsidiaries);
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto by a US Credit Party or in the assets and Stock of the Target which is a US Credit Party (and in 66% of Stock held by the US Credit Parties of any Target which is a Foreign Subsidiary of a US Credit Party), and the Credit Parties and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(viii) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated and consolidating balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) with respect to a Permitted Acquisition of any Target that is a Domestic Subsidiary, on a pro forma basis, Borrower and its Subsidiaries would have had (1) a Senior Leverage Ratio not in excess of 3.00 to 1.00, and (2) a Total Leverage Ratio not in excess of 3.50 to 1.00, and, with respect to a Permitted Acquisition of any Target that is a Foreign Subsidiary of a US Credit Party, on a pro forma basis, Borrower and its Subsidiaries would have had (1) a Senior Leverage Ratio not in excess of 2.00 to 1.00, and (2) a Total Leverage Ratio not in excess of 2.50 to 1.00, in each case, calculated using EBITDA for the twelve Fiscal Month period ended at the end of Fiscal Month for which financial statements have most recently been required to delivered to Agent pursuant to paragraph (a) of Annex E prior to the consummation of such Permitted Acquisition (as adjusted for such Permitted Acquisition in accordance with clause (y) of the second sentence of the definition of EBITDA and Section 6.1(viii)(D) below) and calculated using Senior Indebtedness and Indebtedness, as applicable, after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as of the date of such Permitted Acquisition, (y) Borrowing Availability (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith) shall be no less than $5,000,000, and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered consolidated and consolidating Projections covering the 1 year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition, which shall include a projected income statement of the Target for such period which demonstrates that the projected EBITDA of the Target for such period is positive;
(C) a certificate of the Borrower executed by the Chief Executive Officer of Borrower to the effect that: (w) Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each of its Subsidiaries) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition, (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower and its Subsidiaries subsequent to the date thereof based upon the historical performance of Borrower and its Subsidiaries and the Target and show that (i) Borrower shall continue to be in compliance with the financial covenants set forth in Annex G for the 1-year period thereafter and (ii) the projected EBITDA of the Target for the 1-year period thereafter is positive, and (z) Borrower has completed its due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders; and
(D) a certificate of the Borrower executed by the Chief Executive Officer of Borrower as to the historical EBITDA of the Target for each of the 12 Fiscal Months prior to the date of such Permitted Acquisition, which are proposed to be included in the calculation of Borrower’s consolidated net income in calculating EBITDA for any such period, provided the methodology of calculating such amounts shall be reasonably satisfactory to Agent;
(ix) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9;
(x) Agent shall have received: (x) with respect to any Target that is a Domestic Subsidiary of a US Credit Party, Phase I Environmental Site Assessment Reports, consistent with American Society for Testing and Materials (ASTM) Standard E 1527-00 (or the current ASTM standard for Phase I environmental site assessment reports), and applicable state requirements, and with respect to any Target that is a Foreign Subsidiary of a US Credit Party, environmental review and audit reports of the type customary in the applicable jurisdiction, in each case, with respect to all real property owned or leased by the Target, dated no more than 6 months prior to the Closing Date, prepared by environmental engineers reasonably satisfactory to Agent, all in form and substance reasonably satisfactory to Agent, in its sole discretion; (y) such environmental review and audit reports, including Phase II reports, with respect to any such real property as Agent shall have requested, and Agent shall be satisfied, in its sole discretion, with the contents of all such environmental reports; and (z) letters executed by the environmental firms preparing such environmental reports, in form and substance reasonably satisfactory to Agent, authorizing Agent and Lenders to rely on such reports; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that (i) any wholly-owned Subsidiary of US Borrower may merge with US Borrower so long as US Borrower is the survivor thereof, (ii) any wholly-owned Subsidiary of European Borrower may merge with European Borrower so long as European Borrower is the survivor thereof, (iii) except as permitted under clause (i) above, any US Credit Party (other than Innovations and US Borrower) may merge with any other US Credit Party (other than Innovations and US Borrower), and (iv) any European Credit Party (other than European Borrower) may merge with any other European Credit Party (other than European Borrower), or (b) except for the formation of Morpheus Acquisition Corp. and Morpheus Acquisition LLC and the acquisition of assets in connection with the Acquisition, form any Subsidiary or acquire all or substantially all of the assets or Stock of any Person without the prior written consent of Requisite Lenders. Notwithstanding the foregoing:
(i) Borrower , any Credit Party may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders), but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted AcquisitionAcquisition (Agent hereby agreeing to provide copies of such notice to the Lenders promptly following receipt thereof);
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)otherwise duly authorized by the Target;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower the Reporting Credit Parties and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts consideration payable in connection with any single all Permitted Acquisition (Acquisitions, including all transaction costs costs, ordinary course trade payables, accrued expenses and all Indebtednessunsecured Indebtedness incurred, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise to be reflected in on a consolidated balance sheet of Borrower Reporting Credit Parties and TargetTarget after giving effect to such Permitted Acquisition shall consist solely of (A) shall Stock of Innovations and/or (B) cash not to exceed $5,000,000, and 1,000,000 in the sum of such amounts aggregate for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000the period from the Closing Date until the Termination Date;
(Fvi) the Target shall have positive EBITDA for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) Concurrently at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and each Credit Party and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent (Agent hereby agreeing to provide copies of such documents to the Lenders promptly following receipt thereof):
(1) a pro forma consolidated balance sheet, income statement and cash flow statement of the Reporting Credit Parties (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Innovations and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and the Reporting Credit Parties would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(2) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent:, taking into account such Permitted Acquisition; and
(3) a certificate of the Treasurer and Vice President, Finance, of Innovations to the effect that: (w) each Credit Party (after taking into consideration all rights of contribution and indemnity such Credit Party has against Innovations and each other Subsidiary of Innovations) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of the Reporting Credit Parties (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of the Reporting Credit Parties subsequent to the date thereof based upon the historical performance of the Reporting Credit Parties and the Target and show that the Reporting Credit Parties shall continue to be in compliance with the financial covenants set forth in Annex G for the 3-year period thereafter; and (z) the Reporting Credit Parties have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of Section 5.9 and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any PersonPerson (other than the merger or consolidation of (I) a Borrower with another Borrower, (II) a Subsidiary Guarantor with another Subsidiary Guarantor, or (III) a Subsidiary Guarantor with Borrower, with Borrower as the surviving entity) or (b) form or acquire any Subsidiary. Notwithstanding the foregoing:
(i) Borrower , any Credit Party may form a Subsidiary or otherwise acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 30 days') ' prior written notice of the expected consummation date of each such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall be consensual (i.e., it shall not involve a hostile takeover);
(iii) such Permitted Acquisition shall only involve assets located in the United States and Canada comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, or reasonably related thereto in the Agent's good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentcredit judgment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Civ) such Permitted Acquisition each Target shall be consensual have become a "Credit Party" under this Agreement, and shall have been approved executed and delivered to Lender all documents reasonably requested by Lender in furtherance of the Target's board foregoing, including, (a) with respect to a Target owned by any Parent Guarantor, a Guaranty in form and substance satisfactory to Agent, and (b) with respect to a Target organized under the laws the United States and owned by any Borrower or Subsidiary Guarantor, a joinder to the Security Agreement, a joinder to the Pledge Agreement, and if requested by Agent, a Guaranty in form and substance satisfactory to Agent;
(v) such Credit Party shall execute and deliver to Agent such agreements and documents reasonably requested by Agent in order to grant to the Agent, for the benefit of directors Agent and Lenders, a perfected first priority security interest in all of the Stock of the Target (or comparable governing bodyup to 65% of Capital Stock of any Target organized under the laws of any jurisdiction other than the United States);
(Dvi) the costs, fees or expenses of forming or acquiring any such new Target shall be provided by a direct or indirect contribution from any Parent Guarantor; provided, that if after the payment of such costs, fees or expenses of formation or acquisition, Liquidity exceeds $15,000,000, then there shall be no limitation on the source of such costs, fees or expenses with respect to Targets who become "Borrowers" or "Subsidiary Guarantors"; provided, that, except as otherwise set forth in SECTION 6.17, in no event will Borrowers and Canadian Borrowers contribute more than $5,000,000 in the aggregate in any Fiscal Year for such costs, fees or expenses;
(vii) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed assumed, or shall otherwise be reflected on a the consolidated balance sheet of Borrower Borrowers and their Subsidiaries after giving effect to the Permitted Acquisition, except (A) Loans made hereunder and (B) ordinary course trade payables, accrued expenses and unsecured Indebtedness and contingent obligations of the Target to the extent no Default or Event of Default would result after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(Fviii) the business and assets acquired in such Permitted Acquisition of each Target shall be free and clear of all Liens (other than the first priority Lien of Agent and Permitted Encumbrances);
(Gix) at or prior to the consummation of the Permitted Acquisition, Lender shall have received from Borrowers a written supplement to DISCLOSURE SCHEDULE (3.8) and to any other Schedule to the Loan Agreement, in each case to the extent necessary to correct any information in such Schedule after giving effect to the Permitted Acquisition;
(x) Concurrently with delivery of the notice referred to in clause CLAUSE (AI) above, Borrower Credit Parties shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Parent and its Subsidiaries (other than DDi Europe Limited and each of its Subsidiaries) (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Parent and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (y) average Liquidity of Borrowers and Canadian Borrowers in the aggregate for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $15,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Liquidity of $15,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in ANNEX G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to ANNEX E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Parent to the effect that: (w) Credit Parties taken as a whole (after taking into consideration all rights of contribution and indemnity Credit Parties have against each other) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Parent and Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Parent and Borrowers subsequent to the date thereof based upon the historical performance of Credit Parties and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in ANNEX G for the one-year period thereafter, it being understood that uncertainty is inherent in any forecasts or projections and that no assurance can be given that the results set forth in the Projections will actually be obtained; and (z) Credit Parties have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(xi) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(xii) at the time of such Permitted Acquisition and after giving effect thereto, no Event of Default has occurred and is continuing; provided, however, that Parent may form a Subsidiary or otherwise acquire all or substantially all of the assets or Stock of a Target without otherwise complying with the provisions of this Section 6.1 if the sum of all amounts payable in connection with any such Acquisition (including, without duplication, all transaction costs and all Indebtedness and liabilities (other than customary indemnities provided by purchasers)) incurred or assumed in connection therewith shall not exceed (i) $5,000,000 for any individual Acquisition and (ii) $5,000,000 in the aggregate for all Acquisitions during any Fiscal Year. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent and Requisite Revolving Lenders.
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
(i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Restatement Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition Acquisitions in any Fiscal Year (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Credit Party Neither Holdings nor any of its Subsidiaries (except Continental) shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
(i) , Borrower may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 30) days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States (and if the capital Stock of the Target is acquired, the Target must be organized under the laws of, and domiciled in, the United States) and comprising a business, or those assets of a business, of the type engaged in by Borrower Holdings or any of its Subsidiaries (other than any business activity maintained by Continental or any of its Subsidiaries that is not also maintained by one of the Credit Parties) as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except except
(xA) Loans made hereunder,
(B) ordinary course trade payables, accrued expenses and unsecured Indebtedness of the Target to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition,
(C) Borrower may incur Indebtedness to the seller of the acquired assets or Stock, provided that such Indebtedness (i) constitutes Subordinated Debt, (ii) does not exceed 30% of the total consideration in connection with any single Acquisition, (iii) does not, for all Acquisitions in the aggregate, exceed $5,000,000, and (iv) does not result in the violation of any of the financial covenants in the Loan Documents and
(D) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target6.3 hereof;
(Ev) the sum of all amounts payable paid or incurred in connection with all Permitted Acquisitions consummated in any twelve-month period (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower and Target) shall not exceed $15,000,000 and the sum of all such amounts paid or incurred in connection with any single acquisition shall not exceed $5,000,000;
(vi) the consideration to be paid by Borrower in connection with such Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower and Target) shall not exceed the lesser of (i) 8.0 times pro forma EBITDA as shown on the Acquisition Pro Forma (defined hereafter) and (ii) such other multiple as may be approved by the Agent and the Requisite Lenders;
(vii) the consideration to be paid by Borrower in connection with such Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,00030 per covered life acquired;
(Fviii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gix) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all acquired or thereafter created accounts receivable, deposit accounts and general intangibles of Target acquired pursuant thereto, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(x) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith (and all other Indebtedness related to the Permitted Acquisition), with such one-time adjustments as may be acceptable to Agent and the Requisite Lenders (in their good faith discretion), and such Acquisition Pro Forma shall reflect that, on a pro forma basis, no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) a certificate of the chief financial officer of Borrower to the effect that: (x) Borrower (after taking into consideration all rights of contribution and indemnity Borrower has against each Subsidiary of Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (y) the Acquisition Pro Forma fairly presents the financial condition of Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; and (z) Borrower has completed a thorough due diligence investigation with respect to the Target and such Permitted Acquisition, and has provided to Agent and Lenders any and all summaries of such diligence investigation as may have been prepared by or delivered to Holdings or any Credit Party;
(xi) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(xii) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, the Accounts of the Target shall not be included in Eligible Accounts without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Mim Corp)
Mergers, Subsidiaries, Etc. Except as otherwise expressly permitted under Sections 6.2 or 6.8by Section 6.5, no such Credit Party shall not (and shall cause each Subsidiary of such Credit Party not to) directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or capital Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the generality of the foregoing:
(i) , Borrower may form a direct and wholly-owned Subsidiary, or acquire all of the AMENDED AND RESTATED CREDIT AGREEMENT * Material has been omitted pursuant to a request for confidential treatment. capital Stock or all or substantially all of the assets or all of the Stock of any Person (such Subsidiary or Person being the "Target") (in each case), a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:conditions (such formation or acquisition being a "Permitted Acquisition"):
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 at least 30 days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisitionthereof;
(Bii) such Permitted Acquisition the assets of the Target (A) shall only involve assets either be (1) located in the United States or such other jurisdiction under which Agent, on behalf of Co-Agents and comprising Lenders, will receive a first priority perfected Lien thereon, or (2) not located in the United States or such other jurisdiction described above and have a fair market value at all times of less than $****, and (B) shall comprise a business, or those assets of a business, of the type types or similar to the types engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject any Co-Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) with respect to an acquisition, such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with (A) any single one Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, **** and the sum of (B) all such amounts for all Permitted Acquisitions in any Fiscal Year during the term hereof shall not exceed $15,000,000****;
(Fvi) the Target shall not have incurred an operating loss of more than $**** for the trailing 12-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) Concurrently at the closing of any Permitted Acquisition, either (A) the Target shall become a "Guarantor" and "Credit Party" hereunder, Agent will be granted, for the benefit of Co-Agents and Lenders, a first priority perfected Lien (subject to Permitted AMENDED AND RESTATED CREDIT AGREEMENT * Material has been omitted pursuant to a request for confidential treatment. Encumbrances) in the assets and capital Stock of the Target, and each Credit Party and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith, or (B) with the written consent of Agent and Supermajority Revolving Lenders, the Target shall become an "Excluded Subsidiary" hereunder; provided, that any amounts payable in connection with such Permitted Acquisition are permitted under Section 6.2;
(ix) concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial data, which shall be complete and shall accurately and fairly represent the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (1) Available Liquidity for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $150,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Available Liquidity of $150,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (2) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition, and Borrower would have been in compliance with the financial covenants set forth in Annex G that are required to be tested for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period, including for purposes of determining Available Liquidity during such period);
(B) for each Permitted Acquisition for which total cash and non-cash consideration paid by Credit Parties is in excess of $1,000,000, updated versions of the most recently delivered Projections covering the one year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a statement of the chief financial officer of Borrower to the effect that:
(1) Borrower (after taking into consideration all rights of contribution and indemnity of Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (2) the Acquisition Pro Forma fairly presents the financial condition of Borrower on a consolidated basis as of the date thereof after giving effect to the Permitted Acquisition; (3) the Acquisition Projections, if any, are reasonable AMENDED AND RESTATED CREDIT AGREEMENT estimates of the future financial performance of Borrower and its Subsidiaries subsequent to the date thereof based upon the historical performance of Borrower, its subsidiaries and the Target, and show (without guaranty of) that Borrower shall continue to be in compliance with the financial covenants set forth in Annex G for the three year period thereafter; and (4) Borrower has completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Co-Agents shall have received, in form and substance satisfactory to Co-Agents, all opinions, certificates, lien search results and other documents reasonably requested by Co-Agents; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. In no event shall the Accounts of Target be included in Eligible Accounts without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary unless such Subsidiary, upon its formation or acquisition, as applicable, become a Credit Party hereunder and Borrowers and such Subsidiary take such actions as required by Section 5.10, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person; provided, that (x) any Borrower may merge with and into another Borrower so long as the Borrower Representative shall be the survivor of any such merger to which it is a party, (y) any Subsidiary may merge with and into a Borrower so long as such Borrower shall be the survivor of any such merger to which it is a party and (z) any Subsidiary may merge with, consolidate with, acquire all, or substantially all the assets or Stock of another Subsidiary so long as, if either is a Borrower, then the survivor of any such merger, consolidation or acquisition is a Borrower and, if either is a Credit Party that is not a Borrower, then the survivor of any such merger, consolidation or acquisition is a Credit Party. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 30) days') ’ prior written notice of prior to the expected consummation date closing of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada (subject to immaterial amounts of assets not so located) and comprising a business, or those assets of a business, of the type useful in or engaged in in, as applicable, by Borrower Borrowers as of the Closing Restatement Date and other businesses thatany line of business or business activities that are substantially similar, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary related or complimentary incidental thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals of the type applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)persons performing similar functions;
(Div) no additional Indebtednessunless Agent otherwise consents, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, and the sum of such amounts for Target which takes into account all Permitted Acquisitions effected prior to the date of such balance sheet), (i) Borrowing Availability is greater than or equal to 17.5% of the Borrowing Base, (ii) after giving effect to any such amounts payable in any Fiscal Year connection with all such Permitted Acquisitions, the Fixed Charge Coverage Ratio recomputed on a pro forma basis after giving effect thereto shall not exceed $15,000,000be less than 1.10:1.00, and (iii) no Event of Default shall have occurred and be continuing or would result therefrom; provided, however, that compliance with clause (iii) hereof shall be the sole requirement in the event that after giving effect to all amounts payable in connection with all Permitted Acquisitions, Borrowing Availability is greater than 25% of the Borrowing Base;
(Fv) at or prior to the business and closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrowers and the Target shall have executed such Permitted Acquisition shall documents and taken such actions as may be free and clear of all Liens (other than Permitted Encumbrances)required by Agent in connection therewith;
(Gvi) Concurrently concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability of all Borrowers for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $30,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $30,000,000 shall continue for at least ninety (90) days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and either (i) Borrowers would have been in compliance with the Financial Covenant for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex D prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period and calculated without regard to whether the then current Borrowing Availability exceeds the Minimum Availability Amount) or (ii) the sum of all amounts payable (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and the applicable Target(s)) in connection with (A) all Permitted Acquisitions shall not exceed $30,000,000 in the aggregate and (B) any such Permitted Acquisition shall not exceed $20,000,000 (or such greater amount agreed to by Agent, but in any event not to exceed, when aggregated with all other Permitted Acquisitions for purposes of this clause (ii), $30,000,000);
(B) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer or treasurer of Borrower each to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each Borrower and each other Subsidiary of Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Projections are reasonable and good faith estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and based upon good faith assumptions made in light of current conditions and current facts known to Borrowers and show that Borrowers shall continue to be in compliance with the Financial Covenant for the 2-year period thereafter; and (y) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the non-privileged results of which investigation were delivered to Agent and Lenders;
(vii) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of Section 5.9; and
(viii) absent the written consent of the Requisite Lenders, at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory until Agent has notified Borrower Representative that it has completed such diligence matters (including, audits and appraisals (which shall be completed by appraisers chosen by Agent), as applicable) necessary to determine the eligibility thereof; provided; that Agent shall agree to act as promptly as practicable to complete such diligence matters; provided, further, that any audits, field examinations and/or appraisals in connection with Permitted Acquisitions shall not count against the limited number of audits, field examinations and appraisals for which expense reimbursement may be sought. The foregoing shall not preclude the Borrowers from including the Accounts and Inventory of the Target in any pro forma calculations required pursuant to this Section 6.1.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 Without the prior written consent of the Requisite Lenders (which consent may be provided or 6.8withheld in the Requisite Lender’s sole discretion), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, or (c) other than purchases of Inventory and licenses of Intellectual Property, in each case in the ordinary course of business consistent with practices as in effect on the date hereof, purchase assets from any Person if (i) such purchase is not a Capital Expenditure or (ii) the amount paid for such purchase does not reduce the EBITDA, during the period such purchase is made and by the amount paid for such purchase, of the Credit Party which makes such purchase. Notwithstanding the foregoing:
, Credit Parties may form one or more new wholly-owned Subsidiaries as long as (i) Borrower no more than ten (10) new subsidiaries are formed after the date hereof; (ii) as of the date of such formation of such new Subsidiary, no Event of Default shall have occurred and be continuing; (iii) pursuant to documentation acceptable to the Agent, each of such new Subsidiaries at the time it is formed becomes a Credit Party (each, a “New Credit Party”) under this Agreement; and (iv) at the time that such New Credit Party is formed, all Credit Parties, including each such New Credit Party, shall have executed and delivered such amendments, restatements or other supplements to this Agreement and/or the other existing Loan Documents, and such new Loan Documents and other notes, documents, certificates, opinions and agreements as Agent may acquire deem necessary or appropriate, including, without limitation, (a) a joinder agreement with respect to this Agreement, the Security Agreement and the Guaranty and a Mortgage, as applicable, together with all or necessary financing statements and/or fixture filings, as applicable, by each New Credit Party to ensure that the Obligations are secured by first priority Liens on substantially all of the assets or all of such New Credit Party and that each New Credit Party is guarantying the Obligations, (b) a Pledge Amendment to the Pledge Agreement pledging 100% of the Stock of any Person each such New Credit Party to Agent, and (c) formation and organization documents, certificates, resolutions and legal opinions with respect to the "Target") (foregoing which shall, in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:.
Appears in 1 contract
Samples: Credit Agreement (Navarre Corp /Mn/)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, except as provided in SECTION 5.17, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower, PROVIDED that Borrower Representative shall be the survivor of any such merger to which it is a party. Lender hereby consents to the merger prior to the Closing Date of Miramar into Unapix, with Unapix being the surviving corporation. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "TargetTARGET") (in each case, a "Permitted AcquisitionPERMITTED ACQUISITION") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent Lender shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted AcquisitionDocuments;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Revolving Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition, and (C) Indebtedness subordinated to payment of the Obligations pursuant to the terms of a Subordination Agreement or on other terms satisfactory to the Lender in its sole discretion;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in 750,000 during any Fiscal Year and the portion thereof allocable to goodwill and intangible assets for any such Permitted Acquisition shall not exceed $15,000,000thirty-five percent (35%) of the amount payable in connection with such Permitted Acquisition;
(Fvi) Net Borrowing Availability on the date of such Permitted Acquisition and for each day during the 30-day period preceding the consummation of such Permitted Acquisition (in each case after giving effect to such Permitted Acquisition and all Revolving Loans to be funded in connection therewith) shall exceed $3,000,000;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) Concurrently at or prior to the closing of any Permitted Acquisition, Lender will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto, or in the assets and capital stock of the Target, and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Lender in connection therewith;
(ix) concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to AgentLender, in form and substance reasonably satisfactory to AgentLender:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Unapix and its Subsidiaries (the "ACQUISITION PRO FORMA"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Unapix and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Revolving Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (i) Net Borrowing Availability for each day during the 30-day period preceding the consummation of such Permitted Acquisition would have exceeded $3,000,000 on a pro forma basis (giving effect to such Permitted Acquisition and all Revolving Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Net Borrowing Availability of $3,000,000 shall continue for each day during the 30-day period following the consummation of such Permitted Acquisition, and (ii) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in ANNEX F for the four quarter period reflected in the Compliance Certificate most recently delivered to Lender pursuant to ANNEX D prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Revolving Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions (the "ACQUISITION PROJECTIONS") of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition, which Acquisition Projections (x) shall be prepared on a monthly basis, (y) shall include consolidated and consolidating balance sheets and statements of income and cash flow, and (z) otherwise shall be prepared in accordance with the Projections and based upon historical financial data of a recent date satisfactory to Lender, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of each Borrower to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each other Subsidiary of
Appears in 1 contract
Samples: Credit and Security Agreement (Unapix Entertainment Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no (a) No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any SubsidiarySubsidiary (other than M&M Acquisition Co.), or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any PersonPerson (other than M&M). Notwithstanding the foregoing:
(i) , Borrower or any wholly owned Subsidiary of Borrower may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "TargetTARGET") (in each case, a "Permitted AcquisitionPERMITTED ACQUISITION") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) the Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition (including, without limitation, a summary of any environmental, health or safety claims, liabilities and costs resulting from the proposed Permitted Acquisition);
(Bii) such Permitted Acquisition shall only involve a business, or those assets of a business, located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by the Borrower as of the Closing Effective Date and other businesses that, (but in no event shall such acquired business engage primarily in the good faith judgment treatment, recycling, storage or disposal of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentany Contaminant), and which businesses acquired business would not subject the Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to the Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors and shareholders (or comparable equivalent governing bodybodies), as necessary;
(Div) no additional Indebtedness, Guaranteed IndebtednessAccommodation Obligations, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and (C) Indebtedness assumed pursuant to a Permitted Acquisition, PROVIDED that (x) the aggregate principal amount of such Indebtedness shall be included in determining the amount of the Investment in such Permitted Acquisition and (y) such Indebtedness shall be paid in full on or before the second Business Day after the closing of such Permitted Acquisition;
(Ev) the sum amount of all amounts payable the Investment in connection with any single such Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and 3,000,000 nor shall the sum aggregate amount of such amounts for all Investments in Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,00010,000,000;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted EncumbrancesEncumbrances and Liens which (A) do not apply to any Property of the Borrower or its Subsidiaries other than the assets acquired in the Permitted Acquisition and (B) are removed no later than the second Business Day after the closing of the Permitted Acquisition);
(Gvii) Concurrently with delivery at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances and other Liens described in CLAUSE (vi) of this SECTION 6.1(a)) in all assets acquired pursuant thereto or in the assets and capital stock of the notice referred to in clause (A) aboveTarget, and Borrower and the Target shall have delivered to executed such documents and taken such actions as may be required by Agent in connection therewith; (viii) within twenty (20) Business Days after the date of such Permitted Acquisition, the Agent shall have received the agreements entered into in connection with the Permitted Acquisition and all opinions, certificates, lien search results, environmental reports, title insurance policies, evidence of compliance with (or exemption from) bulk sales laws, surveys, zoning letters, certificates of occupancy, appraisals and other documents reasonably requested by the Agent, including an assignment of rights in form and substance reasonably satisfactory respect of the Borrower's rights under the related Permitted Acquisition agreements, which assignment shall be expressly permitted under such Permitted Acquisition agreement or shall have been consented to Agent:by the Target in writing; and
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8this Agreement, no Credit Party such Borrower shall directly or indirectly, by operation of law or otherwise, (a1) form or acquire any Subsidiary, or (b2) merge with, consolidate with, or otherwise combine with any Person, (3) acquire, whether through purchase or exchange of Stock or assets or otherwise, all or any part of the assets of any other Person (including, without limitation, Alarm Contracts) or any Stock of or other equity interest in any other Person, (4) dissolve, terminate its existence, consummate any recapitalization, reorganization or other change in its capital structure or the respective voting rights of its members, including without limitation the issuance of any new, additional or different type or class of Stock, the modification, reduction or retirement of any existing class of Stock, or (5) enter into any agreement to do any of the foregoing. Notwithstanding the foregoing, at any time and from time to time, so long as at the time thereof and after giving effect thereto no Default or Event of Default has occurred and is continuing, any Borrower may (A) form wholly-owned Subsidiaries organized under the laws of the United States or any State thereof (so long as the terms of Section 6.11 are fully complied with) and (B) acquire all or substantially all any part of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
(i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person organized under the laws of the United States or any State thereof (the "“Target") ”), including any Alarm Contracts of a Target (in each case, a "“Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders”), but subject to the satisfaction of each of the following conditions:
(Aa) Agent shall receive reasonable at least five (and, in any event, not less than 14 days'5) days prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bb) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower the Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(Dc) no additional Indebtedness, Guaranteed IndebtednessGuaranty Obligations, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower the Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition, or (C) other Indebtedness, Guaranty Obligations contingent obligations and other liabilities permitted hereunder;
(Ed) the sum of all amounts such Permitted Acquisition shall have a purchase price (whether payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtednesscash, liabilities and contingent obligations incurred Stock, Indebtedness or assumed other form of consideration) in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed an amount less than $5,000,0002,500,000, and such purchase price, when added to the sum of such amounts for purchase price paid in all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,0007,500,000;
(Fe) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gf) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and the Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith (including, without limitation, adequate UCC financing statements and assignments);
(g) Concurrently with delivery of the notice referred to in clause subsection (Aa) above, Borrower the Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:, As to any acquisition with a total purchase price (including any Holdback Liabilities) in excess of $2,500,000, a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its consolidated Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (y) on a pro forma basis, the Borrowers would have been in compliance with the Financial Covenants for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Section 5 prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition, and certified by the President or Chief Financial Officer of Holdings to the effect that: (y) each Borrower (after taking into consideration all rights of contribution and indemnity any Borrower has against Parent and any other Borrower) will be Solvent upon the consummation of the Permitted Acquisition; and (z) the Acquisition Pro Forma fairly presents in all material respects the financial condition of the Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; and
(h) at least one (1) Business Day prior to the date of such Permitted Acquisition, Agent shall have received the following acquisition documents, in form and substance reasonably satisfactory to Agent (collectively, the “Acquisition Documents”):
(i) a copy of the fully-executed complete and final purchase agreement and xxxx of sale relating to such Permitted Acquisition, including, without limitation, all exhibits and schedules thereto and related documents and agreements;
(ii) Lien searches on the Target (and any dealers from whom the Target acquired such Alarm Contracts if the two entities are different) and its assets, in form and substance (and with results) satisfactory to Agent, and releases, in form and substance satisfactory to Agent, of all Liens disclosed in such searches;
(iii) a duly completed report, in form and substance reasonably satisfactory to Agent, summarizing the financial and operation details of such acquisition (an “Acquisition Report”), including, without limitation, as attachments thereto (1) evidence of the filing of either a blanket or precautionary UCC-1 financing statements against the related dealer, in the appropriate jurisdiction, covering all of the dealers Alarm Contracts or listing such the Alarm Contracts being acquired, as applicable, and (2) the related non-solicitation agreement (which agreement shall be in form and substance reasonably satisfactory to Agent);
(iv) a sampling, if requested by the Agent, of certified true and correct copies of the Alarm Contracts, together with evidence of delivery of originals pursuant to any required Off Site Storage Agreement; and
(v) if any of the acquired Alarm Contracts relate to alarm systems located in a state in which such Borrower does not operate as of the Closing Date, Borrower will deliver to the Agent evidence that such Borrower has all Governmental Approvals necessary with respect to such acquisition and that Agent shall not be required to obtain any Governmental Approval in order to take or perfect its Lien on such Collateral or enforce its remedies with respect thereto, together with such other evidence of compliance with the Laws of such new state (including without limitation licensing Laws) as Agent may reasonably require, including, without limitation, opinions of counsel relating thereto;
(vi) evidence of such approvals and consents as may be required in connection with such proposed transaction and evidence that the parties from whom such assets are being acquired were properly licensed and qualified to do business in all relevant jurisdictions; and
(vii) such other reports, certificates, filings, documents, agreements, opinions of counsel and information as the Agent may require in connection therewith, with all such items to be in form and substance satisfactory to the Agent.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8(a) No Loan Party shall, no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form merge, consolidate or otherwise combine with any Person or acquire or hold all or substantially all of the assets or capital stock of any Person or form, acquire or hold any Subsidiary, except that:
(i) Acquirer may acquire Shares of Xxxxxx’x pursuant to the Tender Offer and consummate the Acquisition;
(ii) Borrower may maintain its existing investments in its Subsidiaries as of the Closing Date;
(iii) Borrower may form DSG of Virginia, LLC, a wholly-owned Virginia limited liability company (“DSGV”), for the purpose of issuing and selling electronic gift cards; provided that at the time of formation of DSGV, the provisions of Section 5.16(a) are complied with;
(iv) At any time after the Merger has been consummated, any Subsidiary may liquidate or dissolve voluntarily into, and may merge with and into, Borrower or any other Subsidiary, and the assets or Stock of any Subsidiary may be purchased or otherwise acquired by Borrower or any other Subsidiary (bit being understood that Xxxxxx’x may only be purchased initially by Acquirer, and after consummation of the Merger, by Borrower); and provided; that the Borrower shall be the survivor of any merger with a Subsidiary and in no event shall any Subsidiary consolidate with or merge with and into any other Subsidiary unless after giving effect thereto, the Agent shall have a perfected pledge of, and security interest in and to, all of the issued and outstanding interests of Stock (on a fully diluted basis) merge withof the surviving Person to the same extent as the Agent had with respect to such merged or consolidated Person immediately prior to such merger or consolidation in form and substance satisfactory to the Agent and its counsel, consolidate withpursuant to such documentation and opinions as shall be necessary in the opinion of the Agent to create, acquire perfect or maintain the collateral position of the Agent and Lenders therein; and
(v) At any time after the Merger has been consummated, so long as no Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may (to the extent permitted by clause (g) of Section 6.2) purchase all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
(i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target"or any division thereof), or acquire such Person by merger.
(b) (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject Other than Xxxxxx’x and its Subsidiaries prior to the satisfaction of each consummation of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) aboveMerger, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:no Subsidiaries other than wholly-owned domestic Subsidiaries.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary; provided, that Borrower may form wholly-owned Domestic Subsidiaries solely for the purpose of acquiring assets pursuant to a Permitted Acquisition or serving as a vehicle into which existing Subsidiaries of Borrower may be merged, in each case subject to satisfaction of each of the following conditions: (i) Agent shall receive at least 10 Business Days' prior written notice of the proposed formation of any such Domestic Subsidiary, which notice shall include a reasonably detailed description of the purposes therefor; (ii) on or prior to the date of formation of any such Domestic Subsidiary, (A) Agent will be granted a first priority perfected Lien in the capital Stock of such Domestic Subsidiary, and Borrower and such Domestic Subsidiary shall have executed such documents and taken such actions as may be reasonably required by Agent in connection therewith, (B) such Domestic Subsidiary shall become a Guarantor under the Subsidiary Guaranty and shall have executed such other Collateral Documents as may be reasonably required by Agent to evidence the grant by such Domestic Subsidiary of a first priority perfected Lien in its assets, subject only to Permitted Encumbrances, and (C) Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the formation documents and all opinions, certificates, and other documents reasonably requested by Agent; and (iii) at the time of formation of any such Domestic Subsidiary and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, or (b) merge with, consolidate with, acquire all or substantially all of the assets or capital Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
; provided, that (i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:any
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any PersonPerson other than (i) transactions permitted pursuant to Section 6.2, and (ii) the merger or consolidation of a Credit Party into another Credit Party (or a Person which becomes a Credit Party immediately upon the consummation of such merger or consolidation) so long as the Credit Party surviving is the Borrower, if such merger or consolidation involves the Borrower. Notwithstanding the foregoing:
(i) Borrower , Borrower, may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least ten (and, in any event, not less than 14 days'10) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets assets, substantially all of which are located in the United States States, which assets and comprising comprise a business, or those assets of a business, of the type engaged in by Borrower Credit Parties as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are or reasonably related, ancillary or complimentary related thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Loans made hereunder and (B) ordinary course trade payables, accrued expenses, secured Indebtedness otherwise of the Target permitted under Section 6.3(a)(i) and unsecured Indebtedness of the Target permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 in each case, to the extent no Default or Event of Default shall have occurred and (z) ordinary course trade payables and accrued expenses of the Targetbe continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single such Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities to the extent that such liabilities exceed assets, and contingent obligations (including, without limitation any Earn-Out Obligations) incurred or assumed in connection therewith and required to be recognized in accordance with GAAP or otherwise reflected on a consolidated balance sheet of Borrower and Target) shall not exceed $15,000,000, and the sum of all amounts payable in connection with all Permitted Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in during any Fiscal Year shall not exceed $15,000,00045,000,000;
(Fvi) the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's Financial Statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition, unless pro forma compliance with the financial covenants set forth in Annex G for the twelve months following such Permitted Acquisition is demonstrated to the reasonable satisfaction of the Agent;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) not later than seven (7) Business Days' after the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets (real and personal) acquired pursuant thereto or in the assets (real and personal) and capital stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent, preliminary drafts of the following, with final versions of the following to be delivered prior to the closing of such Permitted Acquisitions:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis Borrower and its Subsidiaries would have had a Leverage Ratio not in excess of 9.0 to 1.0 for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), and (y) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise 36 prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; and (y) Borrower has completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, if any, certificates, lien search results and other documents reasonably requested by Agent; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Billed Accounts without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (bi) merge withor consolidate with any Person, consolidate with, (ii) acquire all or substantially all of the assets Stock or Stock ofEquivalents of any Person or (iii) acquire any brand or all or substantially all of the assets of any Person or all or substantially all of the assets constituting any line of business, division, branch, operating division or otherwise combine with or acquire, other unit operation of any Person. Notwithstanding the foregoing, in each case except:
(a) the merger or consolidation of (i) Borrower any Subsidiary of the Borrowers or NCPI with and into NCTV so long as NCTV is the surviving Person, (ii) any Subsidiary of the Borrowers with and into NCPI so long as NCPI is the surviving Person, and (iii) any Subsidiary of the Borrowers with and into any Credit Party other than the Borrowers so long as a Credit Party is the surviving Person; and
(b) the Borrowers may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:conditions (provided, that, for Permitted Acquisitions where the purchase price is less than $500,000, the Borrowers shall not be required to comply with (ix) and (x) below):
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject any Senior Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated Consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the Target, so long as such trade payables, expenses and Indebtedness are not incurred in connection with or in anticipation of such Permitted Acquisition, and (C) Capital Lease Obligations and purchase money Indebtedness of the Target, so long as after giving effect thereto, the Borrowers and their Subsidiaries are in compliance with Section 6.3(a)(i) (it is understood that this clause (iv) does not restrict any hold back of purchase price in an escrow account available to pay indemnification claims under the acquisition documents);
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated Consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, and 8,000,000 during the sum term of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000this Agreement;
(Fvi) the Target shall not have EBITDA of less than $0 for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition, pro forma for cost saving adjustments approved by the Agent;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) Concurrently at or prior to the closing of any Permitted Acquisition, Collateral Agent will be granted a First Priority Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto, and Borrowers shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma Consolidated balance sheet, income statement and cash flow statement of Borrowers and their Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and their Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) the sum of (A) the average daily Borrowing Availability for the ninety (90)-day period preceding the consummation of such Permitted Acquisition plus (B) unrestricted cash on hand in deposit accounts in which the Collateral Agent has a First Priority Lien, would have exceeded $2,500,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that the sum of (A) such Borrowing Availability plus (B) unrestricted cash on hand in deposit accounts in which the Collateral Agent has a First Priority Lien of $2,500,000 shall continue for at least ninety (90) days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the periods reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition;
(C) a certificate of the president or chief financial officer of Borrower Representative to the effect that: (v) such Permitted Acquisition satisfied all of the conditions set forth in clauses (i) through (xi) of this Section 6.1; (w) Borrowers (after taking into consideration all rights of contribution and indemnity Borrowers have against each other Credit Party) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a Consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the 3-year period thereafter (assuming the financial covenants continued to apply for such period); and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders; and
(D) the most recent Cumulative Leakage Index reports, pro forma projections and subscriber reports for the assets being acquired, in form and substance satisfactory to the Agent;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results, FCC or other Governmental Authority approvals and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9;
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Credit Agreement (Northland Cable Properties Seven Limited Partnership)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 Without the prior written consent of the Requisite Lenders (which consent may be provided or 6.8withheld in the Requisite Lender’s sole discretion), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, or (c) other than purchases of Inventory and licenses of Intellectual Property, in each case in the ordinary course of business consistent with practices as in effect on the date hereof, purchase assets from any Person if (i) such purchase is not a Capital Expenditure or (ii) the amount paid for such purchase does not reduce the EBITDA, during the period such purchase is made and by the amount paid for such purchase, of the Credit Party which makes such purchase. Notwithstanding the foregoing:
, Credit Parties may form one or more new wholly owned Subsidiaries as long as (i) Borrower no more than ten new subsidiaries are formed after the date hereof; (ii) as of the date of such formation of such new Subsidiary, no Event of Default shall have occurred and be continuing; (iii) pursuant to documentation acceptable to the Agent, each of such new Subsidiaries at the time it is formed becomes a Credit Party (each, a “New Credit Party”) under this Agreement; and (iv) at the time that such New Credit Party is formed, all Credit Parties, including each such New Credit Party, shall have executed and delivered such amendments, restatements or other supplements to this Agreement and/or the other existing Loan Documents, and such new Loan Documents and other notes, documents, certificates, opinions and agreements as Agent may acquire deem necessary or appropriate, including, without limitation, (a) a joinder agreement with respect to this Agreement, the Security Agreement and the Guaranty and a Mortgage, as applicable, together with all or necessary financing statements and/or fixture filings, as applicable, by each New Credit Party to ensure that the Obligations are secured by second priority Liens on substantially all of the assets or all of such New Credit Party and that each New Credit Party is guarantying the Obligations, (b) a Pledge Amendment to the Pledge Agreement pledging 100% of the Stock of any Person each such New Credit Party to Agent, and (c) formation and organization documents, certificates, resolutions and legal opinions with respect to the "Target") (foregoing which shall, in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:.
Appears in 1 contract
Samples: Credit Agreement (Navarre Corp /Mn/)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 Without the prior written consent of the Agent (which consent may be provided or 6.8withheld in the Agent's sole discretion), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, or (c) other than purchases of Inventory and licenses of Intellectual Property, in each case in the ordinary course of business consistent with practices as in effect on the date hereof, purchase assets from any Person if (i) such purchase is not a Capital Expenditure or (ii) the amount paid for such purchase does not reduce the EBITDA, during the period such purchase is made and by the amount paid for such purchase, of the Credit Party which makes such purchase; provided, however that (A) the Borrower may form Encore Acquisition and (B) Encore Acquisition may acquire the assets of Encore Software pursuant to and in accordance with the Encore Purchase Agreement. Notwithstanding the foregoing:
, Borrower, may (i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with and (ii) make Permitted Intellectual Property Acquisitions from any Person (a "Seller"), in the consent case of Requisite Lenders or without consent each of Agent or Requisite Lenders, but (i) and (ii) subject to the satisfaction of each of the following conditions:
(Ai) in the case of a Permitted Acquisition, Agent shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) in the case of a Permitted Intellectual Property Acquisition, promptly following the consummation of such Permitted Intellectual Property Acquisition, Agent shall receive notice thereof, which notice shall include a reasonably detailed description thereof;
(iii) in the case of a Permitted Acquisition, such Permitted Acquisition shall only involve assets located in the United States or Canada and solely comprising a businessbusiness of distributing (exclusive of distributing via internet) of music software and videos, or those the assets of a such business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Civ) such Permitted Acquisition transaction shall be consensual and shall have been approved by the Target's or Seller's board of directors (or comparable governing body)directors;
(Dv) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations Contingent Obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target (if applicable) after giving effect to such Permitted Acquisitiontransaction, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and , to the extent approved by the Agent in writing in its sole direction and otherwise permitted hereunder, unsecured Indebtedness of the TargetTarget (if applicable) to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such transaction;
(Evi) the sum of all amounts payable in connection with any single Permitted Acquisition such transaction (including all transaction costs and all Indebtedness, liabilities and contingent obligations Contingent Obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower Borrower, its Subsidiaries and TargetTarget (if applicable)) shall not exceed $5,000,000, 1,000,000; and the sum of such all amounts for payable in connection with all Permitted Acquisitions and Permitted Intellectual Property Acquisitions (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower, its Subsidiaries and Target) (if applicable) during any Fiscal Year shall not exceed $15,000,0002,500,000 in the aggregate;
(Fvii) in the case of a Permitted Acquisition, the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(viii) the business and assets acquired in such Permitted Acquisition transaction shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gix) Concurrently at or prior to the closing of each such transaction, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(x) in the case of a Permitted Acquisition, concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered deliver to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $10,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $10,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G to the Credit Agreement for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to clause (a) of Annex E to the Credit Agreement prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the 3 year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower is Solvent immediately following the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower and its Subsidiaries subsequent to the date thereof based upon the historical performance of Borrower and its Subsidiaries and the Target and show that Borrower and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Annex G to the Credit Agreement for the 3-year period thereafter; and (z) Borrower and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(xi) in the case of any Permitted Intellectual Property Acquisition, the average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Intellectual Property Acquisition would have exceeded $10,000,000 on a pro forma basis (after giving effect to such Permitted Intellectual Property Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(xii) in the case of a Permitted Acquisition, on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9; and
(xiii) at the time of such transaction and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory of a Target shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent and Requisite Lenders."
Appears in 1 contract
Samples: Credit Agreement (Navarre Corp /Mn/)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person or any operating division of any Person. Notwithstanding the foregoing:
, any Borrower (i) Borrower or Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to a Borrower), may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "TargetTARGET") (in each case, a "Permitted AcquisitionPERMITTED ACQUISITION") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:conditions (provided that nothing contained in this SECTION 6.1 shall prohibit any Borrower from merging into another Borrower or from being dissolved so long as in connection therewith all of its assets are transferred to other Borrowers):
(Ai) Administrative Agent shall receive reasonable at least fifteen (and, in any event, not less than 14 15) days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets of which at least 90% (based on fair market value) are located in the United States and/or Canada and comprising a business, or those assets of a business, of the type engaged in by such Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are or a business reasonably related, ancillary or complimentary related thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Administrative Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to such Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtednessindebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of such Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses (to the extent of current assets being acquired of the Target) and unsecured Indebtedness of the Target to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition; PROVIDED that; the aggregate amount of unsecured Indebtedness, contingent obligations (excluding "earn-outs" from future earnings of the acquired entity) and other liabilities assumed in the acquisition or retained by the Target after giving effect to the acquisition shall not exceed 30% of the total acquisition price of the Permitted Acquisition;
(Ev) [Reserved.]
(vi) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) Target shall not exceed $5,000,000have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's Financial Statements (computed on a pro forma basis excluding Target's private ownership expenses to the extent such expenses will not be continuing after giving effect to the Acquisition), and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000be projected to have an operating loss during the twelve-month period following the date of the Permitted Acquisition, based on reasonable projections with respect to the Target contained in the Acquisition Projections referred to in SECTION 6.1(ix)(b);
(Fvii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition (or within 30 days after such closing in the case of Real Estate), Administrative Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and capital stock of the Target (or in the case of Real Estate, only those assets the aggregate Borrowers' investment in which exceeds $1,000,000), and Holdings and such Borrower and the Target shall have executed such documents and taken such actions as may be required by Administrative Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause CLAUSE (Ai) above, such Borrower shall have delivered to Administrative Agent, in form and substance reasonably satisfactory to Administrative Agent:
(A) A PRO FORMA CONSOLIDATED BALANCE SHEET OF HOLDINGS AND ITS SUBSIDIARIES (THE "ACQUISITION PRO FORMA"), based on recent financial data, which shall be complete and shall accurately and fairly represent the assets, liabilities, financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the equity contribution made in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and the Borrowers would have been in compliance with the financial covenants set forth in ANNEX G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to ANNEX E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition as if made on the first day of such period), and (y) the Acquisition Projections (as hereinafter defined) shall reflect that the average daily Net Borrowing Availability, after giving effect to payment of accounts payable (including those assumed in connection with such Permitted Acquisition) consistent with past practices, of $5,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, PROVIDED that such requisite average daily Net Borrowing Availability shall be $3,000,000 if the proceeds used to fund such Permitted Acquisition are comprised solely of equity contributions and/or Stock of Holdings and there are no contingent obligations or liabilities associated with the Target assumed in connection with such Permitted Acquisition;
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "ACQUISITION PROJECTIONS") and based upon historical financial data of a recent date satisfactory to Administrative Agent, taking into account such Permitted Acquisition; and
(C) A certificate of the chief financial officer of Holdings and such Borrower to the effect that: (w) such Borrower (after taking into consideration all rights of contribution and indemnity such borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Holdings and such Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Aquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Holdings and such Borrower subsequent to the date thereof based upon the historical performance of Holdings, such Borrower and the Target; and (z) Holdings and such Borrower have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Administrative Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, all opinions, certificates, lien search results and other documents reasonably requested by Administrative Agent; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary unless such Subsidiary, upon its formation, become a Credit Party hereunder and Borrowers and such Subsidiary take such actions as required by Section 5.10, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person; provided, that (x) any Borrower may merge with and into another Borrower so long as the Borrower Representative shall be the survivor of any such merger to which it is a party, (y) any Subsidiary may merge with and into a Borrower so long as such Borrower shall be the survivor of any such merger to which it is a party and (z) any Subsidiary may merge with, consolidate with, acquire all, or substantially all the assets or Stock of another Subsidiary so long as, if either is a Credit Party, then the survivor of any such merger, consolidation or acquisition is a Credit Party. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 30) days') ’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada (subject to immaterial amounts of assets not so located) and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals of the type applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)persons performing similar functions;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Loans made hereunder, (B) ordinary course trade payables, accrued expenses and unsecured Indebtedness otherwise of the Target to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and (C) other debt that would constitute Indebtedness permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, 50,000,000 (and $15,000,000 for any single Permitted Acquisition) and the sum of such amounts portion thereof allocable to goodwill and intangible assets for all such Permitted Acquisitions in any Fiscal Year during the term hereof shall not exceed $15,000,00010,000,000;
(Fvi) unless Agent otherwise consents, the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability of all Borrowers for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $35,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $35,000,000 shall continue for at least ninety (90) days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the Financial Covenant for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex D prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period and calculated without regard to whether the then current Borrowing Availability exceeds $25,000,000);
(B) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer or treasurer of Borrower each to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each Borrower and each other Subsidiary of Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable and good faith estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and based upon good faith assumptions made in light of current conditions and current facts known to Borrowers and show that Borrowers shall continue to be in compliance with the Financial Covenant for the 2-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the non-privileged results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of Section 5.9; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory until Agent has notified Borrower Representative that it has completed such diligence matters (including, audits, as applicable) necessary to determine the eligibility thereof; provided; that Agent shall agree to act as promptly as practicable to complete such diligence matters.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
, except (i) Bermans may be merged with and into Borrower or another Loan Party, (ii) one or more Store Guarantors may acquire be merged with any other Store Guarantor or any Loan Party so long as such Loan Party is the survivor in any merger involving a Loan Party; (iii) cash and financial assets may be transferred among the Loan Parties so long as no Event of Default has occurred and is continuing; (iv) the Stock or fixed assets, Trademarks and Trademark Licenses of Store Guarantors may be transferred to other Store Guarantors or to any Loan Party; (v) the Credit Parties may form new wholly-owned domestic Subsidiaries (other than the Wholesale Subsidiary as defined below); provided that (x) the aggregate initial cash investment in each such new domestic Subsidiary in the form of equity shall not exceed $300,000 and (y) the Credit Parties and each such new domestic Subsidiary shall execute and deliver to Agent forms of the Loan Documents executed by or with respect to the Loan Parties as of the Closing Date; (vi) the Credit Parties may form Joint Ventures to own, lease or operate one or more Stores in one or more domestic airports, as long as the investments therein are permitted pursuant to Section 6.2(c)(vi) and (vii) a Credit Party may form a new Subsidiary which is, directly or indirectly, wholly-owned by Ultimate Parent to carry out the New Wholesale Business (“Wholesale Subsidiary”); provided that (x) the investment in such Wholesale Subsidiary in the form of equity and/or loans from Credit Parties shall not exceed $5,000,000 in the aggregate at any time outstanding and (y) promptly after the formation of such Wholesale Subsidiary (1) such Wholesale Subsidiary shall become a Loan Party under the Credit Agreement, guaranty the Obligations and grant to Agent, for the benefit of Agent and Lenders, a security interest in all or substantially all of the assets or of such Wholesale Subsidiary to secure the Obligations, (2) the applicable Credit Party shall pledge to Agent, for the benefit of Agent and Lenders, all of the Stock of any Person (such Wholesale Subsidiary to secure the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentObligations, and which businesses would not subject (3) Borrower and Wholesale Subsidiary shall deliver such other agreements, documents, opinions, certificates and/or instruments as Agent or any Lender to regulatory or third party approvals reasonably request in connection with the exercise of its rights foregoing (the documentation for such guaranty, security and remedies under this Agreement or any other pledge shall be substantially similar to the applicable Loan Documents other than approvals applicable to the exercise of previously executed with such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved modifications as are reasonably requested by the Target's board of directors (or comparable governing bodyAgent);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:.”
Appears in 1 contract
Samples: Fourth Amended and Restated Credit Agreement (Wilsons the Leather Experts Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) except as otherwise permitted in connection with a Permitted Acquisition, form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower and any other Credit Party may merge into any Borrower, PROVIDED that Borrower Representative shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
foregoing clause (i) Borrower b), any Borrower, may acquire or, subject to the last sentence of this Section 6.1, form a Subsidiary to acquire, all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:.
(Ai) Agent shall receive reasonable at least fifteen (and, in any event, not less than 14 days'15) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of of, or similar to, the type types engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Giv) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower with respect to any Permitted Acquisition involving a purchase price consideration (inclusive of any assumption of liabilities) in excess of $5,000,000, Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and their respective Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and their respective Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith;
(B) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer or treasurer of each Borrower to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each other Subsidiary of each Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the 3-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(v) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents relating thereto; and
(vi) at the time of such Permitted Acquisition and after giving effect thereto, (x) Borrowing Availability of all Borrowers exceeds $19,725,000 and (y) no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, (a) the Accounts, Inventory, Equipment and Real Estate of the Target shall not be included in Eligible Accounts, Eligible Inventory, Eligible Equipment and Eligible Real Estate until (x) Agent determines, on the basis of any field examinations and appraisals conducted by it in connection with such Permitted Acquisition, the appropriate advance rates and Reserves applicable thereto and (y) such assets become subject to the first priority perfected security interests of Agent and otherwise meet the eligibility criteria which apply to such assets and (b) whether or not the assets thereof become part of the Borrowing Base, if a new Subsidiary is formed in connection with any Permitted Acquisition, or, if the Permitted Acquisition is of Stock of a Person which, upon consummation thereof, would become a Subsidiary, such Subsidiary shall (i) if a domestic Subsidiary, (x) become a Credit Party hereunder, (y) enter into a guaranty and a security agreement, each in form and substance identical to the Subsidiary Guaranty and the Security Agreement, and (z) take such other action as may be reasonably requested by Agent to have the assets of such Subsidiary become subject to the first priority perfected security interests of Agent, and (ii) if a foreign Subsidiary, take such action as may be reasonably requested by Agent to have 51% of the Stock of such foreign Subsidiary to be pledged to Agent and subject to the first priority perfected security interest of Agent provided that if such .foreign Subsidiary is a "check the box" subsidiary, 100% of the stock shall be pledged to Agent and subject to the first priority perfected security interest of Agent.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
, except (i) Bermans may be merged with and into Borrower or another Loan Party, (ii) one or more Store Guarantors may be merged with any other Store Guarantor or any Loan Party so long as such Loan Party is the survivor in any merger involving a Loan Party; (iii) cash and financial assets may be transferred among the Loan Parties so long as no Event of Default has occurred and is continuing; (iv) the Stock or fixed assets, Trademarks and Trademark Licenses of Store Guarantors may be transferred to other Store Guarantors or to any Loan Party; (v) the Credit Parties may form new wholly-owned domestic Subsidiaries; provided that (x) the aggregate initial cash investment in each new domestic Subsidiary in the form of equity shall not exceed $300,000 and (y) the Credit Parties and each new domestic Subsidiary shall execute and deliver to Agent forms of the Loan Documents executed by or with respect to the Loan Parties as of the Closing Date; and (vi) Ultimate Parent or any of its Subsidiaries may (x) form or enter into Joint Ventures, (y) create or acquire Foreign Subsidiaries or (z) acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") and form Subsidiaries in connection therewith (in each case, a "Permitted AcquisitionInvestment") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A1) Agent shall receive reasonable at least twenty (and, in any event, not less than 14 20) days') ' prior written notice of the expected consummation date of such proposed Permitted AcquisitionInvestment, which notice shall include a reasonably detailed description of such that proposed Permitted AcquisitionInvestment;
(B2) such all Permitted Acquisition Investments shall only involve assets located or to be located in the United States and comprising a business, States; provided that assets owned by Joint Ventures or those assets of a business, Foreign Subsidiaries may be located outside of the type engaged United States so long as the investment in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary such Joint Ventures or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentForeign Subsidiaries, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection their respective assets, is in compliance with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisitionclause (4) below;
(C3) at the time of the Permitted Investment and after giving effect thereto, the Loan Parties shall be in compliance with Section 6.19;
(4) the aggregate amount invested in Joint Ventures and Foreign Subsidiaries shall not exceed $5,000,000 in any Fiscal Year;
(5) such Permitted Acquisition Investment shall be consensual and and, if applicable, shall have been approved by the Target's board of directors (or comparable governing body)directors;
(D6) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower the Credit Parties and Target after giving effect to such Permitted AcquisitionInvestment, except (xA) Indebtedness otherwise permitted under Section 6.3, Loans made hereunder (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and Indebtedness of the TargetTarget within the limits permitted by Section 6.3 and (C) contingent obligations consisting of indemnities given to sellers with respect to assumed liabilities, assumed letter of credit obligations, and nonmaterial contingent liabilities so long as no Event of Default would result after giving effect thereto;
(E7) the sum of all amounts payable in connection with any single all Permitted Acquisition Investments (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower the Credit Parties and Target) shall not exceed $5,000,00040,000,000 during the Fiscal Year ending in January, 2002, and the sum of such amounts for all Permitted Acquisitions in $20,000,000 during any Fiscal Year shall not exceed thereafter (including, in each case, $15,000,0005,000,000 of Permitted Investments involving assets outside the United States and investments in Joint Ventures);
(F) 8) the business and assets acquired in such each Permitted Acquisition Investment shall be free and clear of all Liens (other than Permitted Encumbrances);
(G9) Concurrently with delivery except for Foreign Subsidiaries and Joint Ventures, at or prior to the closing of any Permitted Investment, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and capital stock of the notice referred to in clause (A) above, Borrower Target and the Target shall have delivered become a Guarantor and each Target that is a Store Guarantor shall have become a party to Agentthe Consignment Agreement, and the Credit Parties and the Target shall have executed such documents and taken such actions as may be reasonably required by Agent in connection therewith; and in the case of Foreign Subsidiaries and Joint Ventures Agent will be granted, as applicable, a pledge of 100% of any domestic Joint Venture equity owned directly or indirectly by Ultimate Parent, sixty-five percent (65%) of the stock of any Foreign Subsidiary and/or the maximum percentage of any foreign Joint Venture equity as will not result in tax liability under IRC ss. 956;
(10) on or prior to the date of such Permitted Investment, Agent shall have received, in form and substance reasonably satisfactory to Agent in all material respects, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other material documents reasonably requested by Agent:;
(11) at the time of such Permitted Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(12) after giving effect to a Permitted Investment, Ultimate Parent and Target, on a consolidated basis ( if consolidation is required under GAAP), or Ultimate Parent alone (if consolidation is not required under GAAP) shall have a Fixed Charge Coverage Ratio that complies with Schedule I for the 12 months preceding and the 12 months following the Permitted Investment; and
(13) if the Target has incurred an operating loss for the trailing twelve month period preceding the date of the Permitted Investments, as determined based upon the Target's Financial Statements for its most recent interim financial period completed not more than ninety (90) days prior to the date of the consummation of such Permitted Investment, Borrower shall have Borrowing Availability of at least $10 million (excluding Seasonal Over-Advances), on a pro forma basis after giving effect to that Permitted Investment. Notwithstanding the foregoing, the Inventory of the Target shall not be included in Eligible Inventory prior to completion of a successful field audit with respect thereto.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 The Borrower shall not (and shall not suffer or 6.8permit any of its Domestic Subsidiaries to), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquirewith, any Person. Notwithstanding the foregoingPerson or acquire any Subsidiary; provided that:
(ia) any Domestic Subsidiary of the Borrower may merge or consolidate with any other Domestic Subsidiary of the Borrower; and
(b) the Borrower or any of its Domestic Subsidiaries may acquire all or substantially all of the assets or all of the Stock or other ownership interests of any Domestic Person (the "“Domestic Target"”) or any Foreign Person (the “Foreign Target”), in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but case subject to the satisfaction of each of the following conditions:conditions of this Section 6.1 (any such acquisition of a Domestic Target, a “Permitted Domestic Acquisition”; any such acquisition of a Foreign Target, a “Permitted Foreign Acquisition”; and any Permitted Domestic Acquisition or Permitted Foreign Acquisition, a “Permitted Acquisition”):
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bi) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by the Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentEffective Date, and which businesses business would not subject the Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to the Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(Eii) the sum of all amounts paid or payable in connection with any single such Permitted Domestic Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of the Borrower and the Domestic Target), together with the sum of all such amounts paid or payable for all such prior Permitted Domestic Acquisitions made on or after the Effective Date (collectively, “Prior Permitted Domestic Acquisitions”) and the sum of all amounts paid or payable for all Permitted Domestic Investments made on or prior to such date in accordance with Section 6.2(g), shall not exceed $5,000,00075,000,000 in the aggregate (the “Domestic Cap”); provided that if, and the sum of such amounts for all after a Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Domestic Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause have been consummated, (A) abovethe Borrower delivers to the Agent, concurrently with the first financial statements required to be delivered hereunder on or after the date six months following such Permitted Domestic Acquisition, (1) pro forma quarterly consolidated financial statements of Borrower and its Subsidiaries reflecting two Fiscal Quarters actual results and two Fiscal Quarters projected results (which (x) in the case of the financial statements reflecting actual results, shall have delivered to Agentbe complete, and (y) in the case of both the actual and projected financial statements, shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but shall take into account such Permitted Domestic Acquisition and the funding of all Advances in connection therewith), and (2) a certificate of the chief financial officer of the Borrower, in form and substance reasonably satisfactory acceptable to the Agent:, certifying that the Borrower would be in compliance with each financial covenant set forth in Annex G for such four-Fiscal Quarter period (and showing in reasonable detail the calculations used in determining compliance) on a pro forma basis (taking into account such Permitted Domestic Acquisition), and (B) average daily Net Liquidity Availability for the six-month period following the actual date of consummation of such Permitted Domestic Acquisition shall have been $30,000,000 or more, then such Permitted Domestic Acquisition thereafter shall not be included as a Prior Permitted Domestic Acquisition for purposes of this Section 6.1(b)(ii) and the sum of all amounts paid or payable in connection with such Permitted Domestic Acquisition shall not be included in the calculation of the Domestic Cap;
(iii) the sum of all amounts paid or payable in connection with any such Permitted Foreign Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of the Borrower and the Foreign Target), together with the sum of all amounts paid or payable for all Permitted Foreign Investments made on or prior to such date in accordance with Section 6.2(g) (other than Permitted Foreign Investments made pursuant to Section 6.2(g)(iv) or Section 6.2(g)(v)), shall not exceed, in the aggregate, the limit set forth in Section 6.2(g)(iii); and
(iv) such Permitted Acquisition otherwise constitutes a Permitted Investment under Section 6.2(g); provided, that, notwithstanding the foregoing, the Inventory and Accounts of the Domestic Target shall not be included in Eligible Inventory or Net Receivables Balance without the prior written consent of the Agent and the Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Synnex Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that (i) any wholly-owned Subsidiary of US Borrower may merge with US Borrower so long as US Borrower is the survivor thereof, (ii) any wholly-owned Subsidiary of European Borrower may merge with European Borrower so long as European Borrower is the survivor thereof, (iii) any US Credit Party (other than Innovations and US Borrower) may merge with any other US Credit Party (other than Innovations and US Borrower), (iv) any European Credit Party (other than European Borrower) may merge with any other European Credit Party (other than European Borrower), and (v) Innovations, Swissco and Inverness Japan may consummate the Acquisition in accordance with the Acquisition Agreement or (b) except for the formation of any Subsidiary or any acquisition of all of the Stock of any Person (an “Acquisition Subsidiary”) solely for the purpose of consummating an acquisition which is reasonably expected to be a Permitted Acquisition or for which the Credit Parties are seeking approval of the Requisite Lenders and provided that (A) prior to the consummation of such acquisition (I) such Acquisition Subsidiary shall constitute an Excluded US Subsidiary or Excluded European Subsidiary, as applicable (and, after consummation of such acquisition, shall constitute a US Credit Party or European Credit Party, as applicable), (II) such Acquisition Subsidiary shall hold no assets (other than the greater of $10,000 and any minimum capital required by law), (III) such Acquisition Subsidiary shall not conduct any business and (IV) no Credit Party shall transfer any funds or other assets to such Acquisition Subsidiary other than capital contributions permitted under the foregoing clause (II) and as necessary to consummate a Permitted Acquisition, and (B) such Acquisition Subsidiary shall be dissolved and the assets of such Acquisition Subsidiary shall be distributed to a Credit Party if (I) such Permitted Acquisition is not consummated within 120 days following the formation or acquisition of such Acquisition Subsidiary, or (II) the Credit Parties do not receive the consent of Requisite Lenders to such acquisition within 120 days following the formation or acquisition of such Acquisition Subsidiary, form any Subsidiary or acquire all or substantially all of the assets or Stock of any Person without the prior written consent of Requisite Lenders. Notwithstanding the foregoing:
(i) Borrower , any Credit Party may acquire all or substantially all of the assets or all of the Stock of any Person (or in the "case of an asset acquisition of substantially all of the assets of a business line or division of a Person) (the “Target"”) (in each case, a "“Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders”), but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least ten (and, in any event, not less than 14 days'10) Business Days prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted AcquisitionAcquisition (Agent hereby agreeing to provide copies of such notice to the Lenders promptly following receipt thereof);
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)otherwise duly authorized by the Target;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower the Reporting Credit Parties and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and payables, accrued expenses and Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts consideration payable in connection with any single all Permitted Acquisition (Acquisitions, including all transaction costs costs, ordinary course trade payables, accrued expenses and all IndebtednessIndebtedness incurred, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise to be reflected in on a consolidated balance sheet of Borrower Reporting Credit Parties and TargetTarget after giving effect to such Permitted Acquisition shall consist solely of (A) shall common stock, par value $.001 per share of Innovations containing substantially the same rights and preferences as in effect on the date hereof and/or (B) cash not to exceed $5,000,000, and 20,000,000 in the sum of such amounts aggregate for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000Year;
(Fvi) the Target shall have positive EBITDA for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition; provided, that if the consideration payable in connection with such Permitted Acquisition consists solely of common stock, par value $.001 per share of Innovations containing substantially the same rights and preferences as in effect on the date hereof, this condition need not be satisfied;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) Concurrently subject to clause (ix) below, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto (other than with delivery respect to intellectual property that is not material in which case such Lien shall be perfected within 60 days following the closing of such Permitted Acquisition) or in the assets and Stock of the notice referred Target and any Acquisition Subsidiary (other than with respect to intellectual property that is not material in clause which case such Lien shall be perfected within 60 days following the closing of such Permitted Acquisition), and each Credit Party, any Acquisition Subsidiary and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) within 60 days following the closing of any Permitted Acquisition in which the Target or any Acquisition Subsidiary is an entity formed outside of the United States, Agent will be granted a first priority Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target and any Acquisition Subsidiary (provided, that, in the case of Stock held by a Domestic Subsidiary, Agent shall be granted a Lien in such Stock under, and subject to any applicable limitations set forth in, the US Pledge Agreement concurrently with the closing of such Permitted Acquisition), and each Credit Party, any Acquisition Subsidiary and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith; provided, that, prior to the closing of such Permitted Acquisition, (A) above, Borrower the Borrowers shall have delivered provided Agent with reasonably detailed written information as to the procedure required under applicable law for Agent to be granted a first priority Lien in all such assets along with confirmation reasonably acceptable to Agent from Borrowers’ local counsel from such jurisdiction that such procedure is correct; (B) Agent shall have consented in writing to the delay in providing such Lien; and (C) both before and immediately after giving effect to such Permitted Acquisition, the European Credit Parties shall have Accounts, Inventory, Real Property, plant, Equipment and available cash (not subject to any Lien other than Permitted Encumbrances (except for Permitted Encumbrances of the type described in clauses (j) and (k) of the definition thereof)) with a net book value of not less than $50,000,000;
(x) notwithstanding the foregoing clause (ix), the Agent may, in its sole discretion, elect to waive such condition with respect to all or a portion of the assets of the Target or any Acquisition Subsidiary to the extent that (A) the grant of such first priority perfected Lien, the execution of any such documents or the performance of any such actions is prohibited by the law of the jurisdiction of formation of the applicable Credit Party, any Acquisition Subsidiary or the Target, (B) the Agent determines that, taking into consideration the costs associated therewith in relation to the value or importance of such first priority perfected Lien, it is not in the best interest of both the Lenders and the Credit Parties to grant such Lien, or (3) the value of the assets or Stock with respect to any Permitted Acquisition which shall be the subject of any waiver under this Section 6.1(x) is, in the aggregate, less than $10,000,000 (or the Equivalent Amount thereof); provided, that Agent may, at any time and from time to time elect, in its sole discretion, to enforce the conditions that had been previously waived under this Section 6.1(x);
(xi) within 30 days following the closing of any Permitted Acquisition, or, if earlier, the date upon which any Credit Party files a current report on Form 8-K with the Securities and Exchange Commission under the Exchange Act which discloses such Permitted Acquisition and includes the financial information provided for below, Borrowers shall deliver to Agent, in form and substance reasonably satisfactory to Agent (Agent hereby agreeing to provide copies of such documents to the Lenders promptly following receipt thereof), (A) if such Permitted Acquisition constitutes a merger or consolidation with, or acquisition of all of the Stock of, any Person, (x) an audited (or, if not available, unaudited) balance sheet and income statement and, if available, cash flow statement of the Target for the most recently completed fiscal year of the Target, and (y) a balance sheet as of the end of the most recently completed fiscal quarter of the Target and an income statement and, if available, cash flow statement, in each case, for the elapsed portion of the fiscal year of the Target to date ending on the last day of the most recently completed fiscal quarter of the Target, in each case, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of the Target in accordance with GAAP consistently applied, and (B) if such Permitted Acquisition constitutes the acquisition of all or substantially all of the assets of any Person and the financial statements described in clause (A) above are not available, a schedule setting forth the assets acquired and the book value thereof and, if available, an income statement reflecting the performance of such assets for the most recently ended Fiscal Year;
(xii) both before and immediately after giving effect to such Permitted Acquisition, the Credit Parties shall have aggregate US Revolving Borrowing Availability, European Revolving Borrowing Availability and available cash (not subject to any Lien other than Permitted Encumbrances (except for Permitted Encumbrances of the type described in clauses (j) and (k) of the definition thereof)) of at least $10 million (or the Equivalent Amount thereof);
(xiii) at or prior to the closing of any Permitted Acquisition, the Borrowers shall deliver to Agent a certificate of the Chief Financial Officer, Treasurer or Vice President, Finance, of Innovations to the effect that: (A) each Credit Party (after taking into consideration all rights of contribution and indemnity such Credit Party has against Innovations and each other Subsidiary of Innovations) is Solvent immediately prior to and will be Solvent upon the consummation of the Permitted Acquisition; (B) each of the applicable conditions set forth in this Section 6.1 have been satisfied; (C) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and the Reporting Credit Parties would have been in compliance with the financial covenants set forth in Annex F for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period); and (D) the Reporting Credit Parties have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(xiv) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent:, copies of the executed acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(xv) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Credit Party No Borrower shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower, provided that Borrower Representative shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
, any Borrower (iother than Holdings) Borrower or Holdings (so long as contemporaneously therewith, all assets so acquired are transferred to one or more other Borrowers) may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition; provided that Agent shall have received at least 15 Business Days’ prior written notice (or such other period as may be consented to by Agent in its reasonable discretion) of any proposed Junior Permitted Acquisition only;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors, where applicable;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Borrowers and, if applicable, Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, 10,000,000 in any one Permitted Acquisition and $30,000,000 in the sum of such amounts aggregate for all such Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000Acquisitions;
(Fvi) for Permitted Acquisitions involving the acquisition of the Target’s Stock only, the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Holdings and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(1) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Borrowers would have had a Fixed Charge Coverage Ratio not less than 1.00:1 for the four-quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), (y) average daily Aggregate Borrowing Availability (less $10,000,000 or such other amount as Borrowers may be required to maintain pursuant to Section 6.10, Annex G, clause (c) of this Agreement) of all Borrowers for the 30-day period preceding the consummation of such Permitted Acquisition would have exceeded $25,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition (other than any impact on the Revolver Borrowing Base and First Funded Revolver Borrowing Base) and all Loans funded in connection therewith as if made on the first day of such period), and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(2) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(3) a certificate of the chief financial officer of Borrower Representative to the effect that: (w) each Borrower (other than Subsidiaries of Core-Xxxx International, Inc.) (after taking into consideration all rights of contribution and indemnity such Borrower has against each other Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the period until the Commitment Termination Date; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of Section 5.9, if applicable; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, for Junior Permitted Acquisitions only, the Borrowers shall not be required to comply with clauses (v), (vi), (ix)(1)(x), (ix)(2) or (ix)(3) above prior to consummating such Junior Permitted Acquisition (but shall, for the avoidance of doubt, be required to comply with all other conditions for a Permitted Acquisition set forth above).
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or ---------------------------- indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) amalgamate or merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower or any Subsidiary Guarantor may merge with a Borrower, so long as, in each instance, a Borrower shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
, any Borrower (i) Borrower or Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to one or more Borrowers), may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Except for the Protective Acquisition, Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets which are substantially located in the United States and/or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and TargetTarget but excluding all amounts payable in connection with the Protective Acquisition) shall not exceed $5,000,000, and in the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed aggregate $15,000,000;
(Fvi) the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) Concurrently at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all Collateral acquired pursuant thereto and each Credit Party hereto and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Net Borrowing Availability of all Borrowers for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $6,000,000 on a pro forma basis (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Net Borrowing Availability of $6,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Holdings or such other officer acceptable to Agent to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Holdings and Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Holdings and Borrowers subsequent to the date thereof based upon the historical performance of Holdings, Borrowers and the Target and show that Holdings and Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the one (1) year period thereafter; and (z) Holdings and Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, (A) the Accounts of the Target shall not be included in Eligible Accounts without the prior written consent of Agent and Requisite Lenders; (B) in the case of a Permitted Acquisition where the amount payable by Borrower is $2,000,000 or less, such Borrower shall only be required to satisfy conditions 6.1(i), (ii), (v) and (xi) above and, in addition, after giving effect to such Permitted Acquisition, the Borrowers have an aggregate Net Borrowing Availability of not less than $8,000,000; and (C) in the case of the Protective Acquisition, Specialty Management Group, Inc shall only be required to satisfy conditions 6.1(ii), (viii) and (xi) above.
Appears in 1 contract
Samples: Credit Agreement (American Eco Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
, Borrower (i) Borrower or Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to Borrower), may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least twenty (and, in any event, not less than 14 days'20) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising comprise a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(Fiv) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gv) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, any Person upon becoming a Subsidiary of a Credit party pursuant to any Permitted Acquisition shall guarantee Obligations and join this Agreement as a Credit Party, and Holdings and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(vi) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) Audited financial statements of the Target (or, if not available, other financial information reasonably satisfactory to Agent);
(B) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings, its Subsidiaries and the business and operations being acquired and such Acquisition Pro Forma shall reflect that (x) Borrowing Availability is at least $10,000,000 immediately prior to and after giving effect to such Permitted Acquisition and all Loans funded in connection therewith, if any, and (y) on a pro forma basis, Holdings and its Subsidiaries would have on a consolidated basis a Fixed Charge Coverage Ratio of (I) not less than 1.10 : 1.00 if such Permitted Acquisition is to be consummated prior to the Fixed Asset Availability Date and (II) not less than 1.15 : 1.00 if such Permitted Acquisition is to be consummated on or after the Fixed Asset Availability Date, for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (calculated as if such Permitted Acquisition and all Loans funded in connection therewith had been made on the first day of such period);
(C) Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(D) a certificate of the chief financial officer of Holdings and Borrower to the effect that: (w) Borrower (after taking into consideration all rights of contribution and indemnity Borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Holdings and Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; and (y) Holdings and Borrower has completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business, and the results of which investigation which were reasonably requested by Agent were delivered to Agent and Lenders; and
(vii) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory until a field audit and appraisals and environmental due diligence of Target and/or its assets have been satisfactorily completed (and with respect to such Accounts and Inventory, Agent shall have the right to adjust the criteria of Eligible Accounts and Eligible Inventory, adjust advance rates and establish Reserves in its reasonable credit judgment,).
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 Without the prior written consent of the Working Capital Agent and Lender (which consent may be provided or 6.8withheld in the Lender's sole discretion), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, or (c) other than purchases of Inventory and licenses of Intellectual Property, in each case in the ordinary course of business consistent with practices as in effect on the date hereof, purchase assets from any Person if (i) such purchase is not a Capital Expenditure or (ii) the amount paid for such purchase does not reduce the EBITDA, during the period such purchase is made and by the amount paid for such purchase, of the Credit Party which makes such purchase; provided, however, that the Purchase may occur. Notwithstanding the foregoing:
, Borrower, may (i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "TargetTARGET") (in each case, a "Permitted AcquisitionPERMITTED ACQUISITION") with and (ii) make Permitted Intellectual Property Acquisitions from any Person (a "SELLER"), in the consent case of Requisite Lenders or without consent each of Agent or Requisite Lenders, but (i) and (ii) subject to the satisfaction of each of the following conditions:
(Ai) Agent in the case of a Permitted Acquisition, Lender shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) in the case of a Permitted Intellectual Property Acquisition, promptly following the consummation of such Permitted Intellectual Property Acquisition, Lender shall receive notice thereof, which notice shall include a reasonably detailed description thereof;
(iii) in the case of a Permitted Acquisition, such Permitted Acquisition shall only involve assets located in the United States or Canada and solely comprising a businessbusiness of distributing (exclusive of distributing via internet) of music software and videos, or those the assets of a such business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Civ) such Permitted Acquisition transaction shall be consensual and shall have been approved by the Target's or Seller's board of directors (or comparable governing body)directors;
(Dv) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations Contingent Obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target (if applicable) after giving effect to such Permitted Acquisitiontransaction, except (xA) Indebtedness otherwise permitted under Section 6.3, Loans made hereunder (yB) Guaranteed Indebtedness otherwise permitted under Section 6.6 Working Capital Loans pursuant to the Working Capital Credit Agreement and (zC) ordinary course trade payables and payables, accrued expenses and, to the extent approved by the Lender in writing in its sole direction and otherwise permitted hereunder, unsecured Indebtedness of the TargetTarget (if applicable) to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such transaction;
(Evi) the sum of all amounts payable in connection with any single Permitted Acquisition such transaction (including all transaction costs and all Indebtedness, liabilities and contingent obligations Contingent Obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower Borrower, its Subsidiaries and TargetTarget (if applicable)) shall not exceed $5,000,000, 1,000,000; and the sum of such all amounts for payable in connection with all Permitted Acquisitions and Permitted Intellectual Property Acquisitions (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower, its Subsidiaries and Target) (if applicable) during any Fiscal Year shall not exceed $15,000,0002,500,000 in the aggregate;
(Fvii) in the case of a Permitted Acquisition, the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(viii) the business and assets acquired in such Permitted Acquisition transaction shall be free and clear of all Liens (other than Working Capital Liens in favor of Working Capital Agent and Permitted Encumbrances);
(Gix) Concurrently at or prior to the closing of each such transaction, Lender will be granted a perfected Lien (subject to Permitted Encumbrances), junior in priority solely to any Working Capital Liens of Working Capital Agent, in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Lender in connection therewith;
(x) in the case of a Permitted Acquisition, concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered deliver to AgentLender, in form and substance reasonably satisfactory to AgentLender:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "ACQUISITION PRO FORMA"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Working Capital Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability (as defined in the Working Capital Credit Agreement) for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $20,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Working Capital Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability (as defined in the Working Capital Credit Agreement) of $20,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G to the Credit Agreement for the four quarter period reflected in the Compliance Certificate most recently delivered to Lender pursuant to clause (a) of Annex E to the Credit Agreement prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Working Capital Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the 3 year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "ACQUISITION PROJECTIONS") and based upon historical financial data of a recent date reasonably satisfactory to Lender, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower is Solvent immediately following the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower and its Subsidiaries subsequent to the date thereof based upon the historical performance of Borrower and its Subsidiaries and the Target and show that Borrower and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Annex G to the Credit Agreement for the 3-year period thereafter; and (z) Borrower and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Lender;
(xi) in the case of any Permitted Intellectual Property Acquisition, the average daily Borrowing Availability (as defined in the Working Capital Credit Agreement) for the 90-day period preceding the consummation of such Permitted Intellectual Property Acquisition would have exceeded $20,000,000 on a pro forma basis (after giving effect to such Permitted Intellectual Property Acquisition and all Working Capital Loans funded in connection therewith as if made on the first day of such period);
(xii) in the case of a Permitted Acquisition, on or prior to the date of such Permitted Acquisition, Lender shall have received, in form and substance reasonably satisfactory to Lender, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Lender, including those specified in the last sentence of Section 5.9; and
(xiii) at the time of such transaction and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory of a Target shall not be included in Eligible Accounts and Eligible Inventory (each as defined in the Working Capital Credit Agreement) without the prior written consent of Working Capital Agent and Lender.
Appears in 1 contract
Samples: Credit Agreement (Navarre Corp /Mn/)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower, provided that Borrower Representative shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and/or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary theretoDate, or reasonable extensions thereof, including without limitation the leasing of medical equipmentbusinesses reasonably related or ancillary thereto, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and (C) purchase money debt and Capital Lease Obligations incurred in the ordinary course of business (to the extent permitted under Section 6.7 hereof) and assumed mortgage debt (to the extent permitted under Section 6.3 hereof);
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(Fv) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances) and Liens securing Indebtedness permitted under clause (iv)(C);
(Gvi) Concurrently at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto, except with respect to assets subject to Liens permitted under clause (v), and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(vii) concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Harvard and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Harvard and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Harvard and each Borrower to the effect that: (w) Credit Parties on a consolidated basis (after taking into consideration all rights of contribution and indemnity each Credit Party has against Harvard and each other Subsidiary of Harvard) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma (which shall not be dated more than 45 days prior to the Permitted Acquisition) fairly presents the financial condition of Harvard and Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Harvard and Borrowers subsequent to the date thereof based upon the historical performance of Harvard, Borrowers and the Target and show that Harvard and Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G until the Termination Date, it being recognized by the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount, and (z) Harvard and Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(viii) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(ix) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, take any of the following actions:
(a) form or acquire any Subsidiary (other than the SCE Subsidiary); provided, that Itron may form one or more SPV Subsidiaries so long as any such SPV Subsidiary either (1) will not receive the proceeds of any Loan (except as otherwise permitted in clause (e) of Section 6.2), or (b2) merge withwill receive the proceeds of any Loan and is not financed by a third party lender (i.e., consolidate with, acquire all or substantially all with funds other than the Obligations) and satisfies each of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoingfollowing terms and conditions:
(i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 at least 30 days') ' prior written notice of the expected consummation date proposed creation of such proposed Permitted AcquisitionSPV Subsidiary, which notice shall include a reasonably detailed description of the types and locations of assets to be held by such proposed Permitted AcquisitionSPV Subsidiary and the book value of the assets at each such location;
(Bii) such Permitted Acquisition SPV Subsidiary shall only involve hold assets located in the United States or Canada (other than the provinces of Quebec and Newfoundland and the Northwest Territories) and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to the creation of such Permitted AcquisitionSPV Subsidiary;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) except as otherwise permitted in this Section 6, no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target Itron after giving effect to the creation of such Permitted AcquisitionSPV Subsidiary, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of such SPV Subsidiary; and
(iv) upon the creation of such SPV Subsidiary, such SPV Subsidiary shall become a "Borrower" hereunder and a "Grantor" under the Security Agreement, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets of such SPV Subsidiary except to the extent prohibited by applicable law and regulations, and such SPV Subsidiary and the other Credit Parties shall have executed such documents and taken such other actions as may be required by Agent in connection therewith; or
(b) merge with, consolidate with, acquire all or substantially all of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtednessassets or capital Stock of, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in combine with or acquire, any Person, except that (i) any Borrower may merge with another Borrower; provided, that Borrower Representative is the survivor of any such merger to which it is a consolidated balance sheet party, (ii) any Subsidiary of Borrower and Target) shall not exceed $5,000,000a Credit Party may be merged into such Credit Party so long as such Credit Party is the survivor, and the sum of such amounts for all Permitted Acquisitions in (iii) any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens Credit Party (other than Permitted Encumbrancesa Borrower) may be merged with another Credit Party (other than a Borrower);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:.
Appears in 1 contract
Samples: Credit Agreement (Itron Inc /Wa/)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Credit No Savvis Party shall directly or indirectly, by operation of law or otherwise, :
(a) form or acquire any Subsidiary, except that, so long as no Default or Event of Default shall have occurred and be continuing or would exist after giving effect thereto, and subject to limitations set forth in Sections 6.2 and 6.3 in respect of Investments and expense reimbursements, (i) Holdings may form wholly-owned domestic Subsidiaries provided that each such wholly-owned domestic Subsidiary shall be required to execute a guaranty and security agreement and all other documentation reasonably required by Agent pursuant to Section 5.12, and Lessee and Holdings shall take and cause to be taken all such other action as may be required by the terms of Section 5.12 in accordance therewith, and provided, further, such new domestic Subsidiaries in the aggregate shall not have assets measured by book value in an amount exceeding that amount which represents as of any date of calculation five (5%) percent of the aggregate book value of the assets of Lessee and all of its Subsidiaries on a consolidated basis, and (ii) Holdings and Savvis International (but not Lessee) may form wholly-owned foreign Subsidiaries; or
(b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
Person provided, however, that so long as no Default or Event of Default shall have occurred and be continuing or would exist after giving effect thereto, (i) Borrower any Subsidiary of Holdings (other than Lessee) may acquire all merge with and into Holdings or substantially all any Wholly-Owned Subsidiary of Holdings (excluding Lessee and its Subsidiaries) but only on the assets condition that no new liabilities (contingent or all otherwise) or obligations exceeding or that could exceed $500,000 in any calendar year shall be assumed by Holdings itself, and Holdings or another Wholly-Owned Subsidiary of Holdings is the Stock surviving entity in such merger, and (ii) any Subsidiary of Lessee may merge with and into Lessee or any Person (Wholly-Owned Subsidiary of Lessee if Lessee or one of its Wholly-Owned Subsidiaries is the "Target") (surviving entity of such merger, provided that in each casecase under this Section 6.1(b), a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) no consideration is given by the surviving entity in such merger other than the issuance of any capital stock of the surviving entity and such capital stock is pledged to the Agent, for and on behalf of the Agent and the Lessors, as security for the Obligations, (B) the surviving entity in any such merger if not a foreign Subsidiary shall ratify the Guaranty, the Security Documents and other indebtedness, liabilities and obligations of the non-surviving entity under the Credit Documents, and (C) Agent shall receive reasonable be satisfied in advance of any such merger (and, in any event, not less than 14 days'following receipt by Agent of at least ten (10) Business Days prior written notice of any such merger of any domestic Subsidiaries or foreign Subsidiaries whose stock has been pledged to Agent) that there is no adverse effect on the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in Agent's Liens or the United States and comprising a business, Collateral or those assets of a business, of otherwise on the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies of Lessors and Agent hereunder and under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:Credit Documents.
Appears in 1 contract
Samples: Master Lease Agreement (Savvis Communications Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any PersonPerson or (c) acquire any Routes. Notwithstanding the foregoing:
(i) Borrower , Xxxxx may acquire all or substantially all Routes from any person (the "Seller") through the purchase of the assets or all of the Stock of any Person related to such Routes (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) If the purchase price exceeds $250,000, Agent shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States in a geographical area contiguous to an area which such Borrower is operating in at the time of the proposed Permitted Acquisition and comprising a business, or those assets of a business, of the type engaged in by Borrower Xxxxx as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the TargetSeller's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities (including any earnout payments or similar arrangements) shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target Borrowers after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (yB) Guaranteed Indebtedness otherwise permitted customary and ordinary course liabilities under Section 6.6 supply contracts for such Routes, and (zC) ordinary course trade payables and accrued expenses unsecured seller notes issued by Xxxxx to the Seller in payment of a portion of the Targetpurchase price (not exceeding 100% of the purchase price) for such Permitted Acquisition so long as such seller notes constitute Subordinated Debt and (2) the aggregate principal amount of such Seller notes issued by Xxxxx does not exceed $2,000,000 outstanding at any time;
(Ev) the sum of all amounts payable in cash in connection with any single all Permitted Acquisition Acquisitions after the Closing Date (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Targetcosts) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions 750,000 in any Fiscal Year shall not exceed $15,000,000fiscal year;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto;
(viii) Concurrently with delivery of the notice referred to in clause (Ai) aboveabove if the purchase price of the Permitted Acquisition will exceed $250,000, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(1) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and their Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and their Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability of all Borrowers for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $2,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $2,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(2) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(3) a certificate of the chief financial officer of each Borrower to the effect that: (w) each Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Route being acquired and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the three-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Seller and the Route, and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(ix) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of Section 5.9; and
(x) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory purchased pursuant to such Permitted Acquisition shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent and Requisite Revolving Lenders.
Appears in 1 contract
Samples: Credit Agreement (Coyne International Enterprises Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8On and after the Closing Date, no Credit Party Borrower shall not directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
(i) , following the Closing Date, Borrower may acquire all or substantially all of the assets or all of the Stock capital stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions; provided, however, that (a) after giving effect to any such Permitted Acquisition, (i) the Aggregate Purchase Price for any single Permitted Acquisition does not exceed $30,000,000, (ii) the Aggregate Purchase Price for all such acquisitions made during the term of this Agreement pursuant to this Section 6.1 does not exceed $40,000,000, provided that such maximum Aggregate Purchase Price shall be increased by the amount of Net Proceeds of the Snorkel Sale in excess of $30,000,000, but in no event shall such maximum Aggregate Purchase Price be greater than $50,000,000 during the term of this Agreement and (iii) Permitted Acquisitions up to an Aggregate Purchase Price of $15,000,000 during the term of this Agreement shall not be subject to the satisfaction of the conditions in (x) subsection (i) below and (y) clauses (a) and (c) and the proviso in subsection (ii) below:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 30) days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Ba) such Permitted Acquisition shall only involve assets (or assets of the Target) located in the United States and comprising of America; (b) such Permitted Acquisition shall involve only a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses thator a similar business as contemplated by Borrower's business plan provided to Lenders on the Closing Date or subsequently amended, in updated or supplemented (to the good faith judgment reasonable satisfaction of the board Lenders); and (c) any part of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses such business would not subject Agent or any Lender to regulatory or third party approvals (other than those disclosed to Agent in writing prior to the Closing Date and any written updates thereto within 30 days after the Closing Date) in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition; provided, however, that a portion of the assets involved in such Permitted Acquisition may be located outside of the United States of America to the extent that the book value of such assets (as determined by reference to the financial statements delivered by Target to Borrower pursuant to Section 6.1(vii)(C)) do not constitute more than fifty-percent (50%) of the purchase price of such Target or Borrower after giving effect to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities such Permitted Acquisition shall be incurredstructured as an asset acquisition by Borrower or a Subsidiary of Borrower, assumed as a merger of the Target into Borrower with Borrower as the surviving corporation or shall otherwise be reflected on with or into a consolidated balance sheet Subsidiary of Borrower and or as an acquisition of all or substantially all the capital stock of such Target directly by Borrower or a Subsidiary of Borrower; provided that after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise any such Subsidiary of Borrower shall immediately become a Subsidiary Guarantor to the extent permitted under Section 6.3the Senior Note Indenture, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses provided, further, that Borrower shall update Schedule 3.9 to include all new Subsidiaries of the TargetBorrower created or acquired in connection with such Permitted Acquisition;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(Fv) the business and assets acquired in such Permitted Acquisition shall be acquired free and clear of all Liens (other than Permitted EncumbrancesEncumbrances or Liens otherwise permitted under this Agreement);
(Gvi) Concurrently with delivery as promptly as possible, but in no event greater than thirty (30) days after the date of the notice referred closing of any Permitted Acquisition, to the extent permitted under the Senior Note Indenture, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances or other Liens permitted under this Agreement) in clause all assets acquired pursuant thereto (Ain the case of an asset acquisition or merger) or in the assets and capital stock of the Target (and its Subsidiaries, if any) (in the case of an acquisition of the capital stock of the Target) and Borrower, Borrower's Subsidiaries, the Target and the Target's Subsidiaries (if any) shall have executed such documents and taken such actions as may be reasonably required by Agent in connection therewith, including, without limitation, in the case of a Permitted Acquisition in which the Target (and/or a Subsidiary of the Target) becomes a Subsidiary of Borrower, such documents and actions as may be required by Agent to make such Target (and/or such Subsidiary) a party to this Agreement as Borrower or a guarantor;
(vii) no less than 10 Business Days prior to the proposed Permitted Acquisition above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a certificate of a Responsible Officer of Borrower certifying to Agent and Lenders that the Leverage Covenant Ratio does not exceed 5:1 on a pro forma basis for the four Fiscal Quarter period reflected in the financial data most recently delivered to Agent pursuant to Annex D prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition as if it were consummated at the conclusion of such four Fiscal Quarter period);
(B) a certificate of a Responsible Officer of Borrower, in his capacity as such, to the effect that Borrower will be Solvent upon the consummation of the Permitted Acquisition; and
(C) a copy of the most recent financial statements of the Target delivered to Borrower.
(viii) as promptly as possible, but in no event greater than thirty (30) days after the date of the closing of such Permitted Acquisition, Agent shall have received all acquisition documents related thereto and legal opinions, certificates and other documents reasonably requested by Agent; provided, that to the extent that any legal opinion is delivered to Borrower or its Subsidiaries in connection with such Permitted Acquisition, Borrower shall use its reasonable best efforts to obtain a reliance letter addressed to Agent and Lenders with respect to such legal opinion; provided, however, that the failure by Borrower to obtain such a reliance letter after its reasonable best efforts shall not affect the status of such acquisition as a Permitted Acquisition; and
(ix) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding Person except a wholly-owned Subsidiary; provided, that in the foregoing:
(i) event Borrower may acquire merges, consolidates or otherwise combines with a wholly-owned Subsidiary, Borrower must be the surviving entity; provided, further, that any acquisition of all or substantially all of the assets or all of the Stock of any a Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but must be made by Borrower and may only be made subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 days') at least 15 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses thatDate, which assets, to the extent consisting of Alarm Contracts, shall be in compliance with the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentrequirements set forth in Section 6.19(a), and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Revolving Loans made hereunder and (zB) ordinary course trade payables and accrued expenses of the Targetexpenses;
(Ev) absent the prior written consent of Agent and Requisite Lenders, the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of 2,500,000 for any such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;Acquisition.
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than, in respect of assets other than Accounts, Alarm Contracts and related property, Permitted Encumbrances);
(Gvii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to, in respect of assets other than Accounts, Alarm Contracts and related property, other Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(viii) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Revolving Loans in connection therewith, and indicate the estimated RMR related to the Alarm Contracts owned by the Target and expected to be acquired in such Acquisition, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Borrower and its Subsidiaries would have had a ratio of Funded Debt to EBITDA not in excess of the maximum permitted Debt to RMR Ratio as of such date as specified in paragraph (a) of Annex F for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex D prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Revolving Loans funded in connection therewith as if made on the first day of such period), (y) average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $250,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Revolving Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $250,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex F for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex D prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Revolving Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the vice president - finance of Borrower to the effect that: (w) Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower subsequent to the date thereof based upon the historical performance of Borrower and the Target and show that Borrower shall continue to be in compliance with the financial covenants set forth in Annex F for the 3-year period thereafter; and (z) Borrower has completed its due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(ix) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9; and
(x) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any PersonPerson (or business unit thereof), except that (i) any Credit Party may merge with another Credit Party, provided that (A) Borrower Representative shall be the survivor of any such merger to which it is a party, (B) neither Credit Party is an Unrestricted Subsidiary and (C) that a Borrower shall be the survivor of any such merger to which a Borrower is a party, (ii) any Unrestricted Subsidiary may merge with another Unrestricted Subsidiary, and (iii) any Credit Party may form a Subsidiary in order to consummate a Permitted Acquisition. Notwithstanding the foregoing:
, any Borrower (ior Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to one or more Borrowers or any special purpose or acquisition Subsidiary of a Borrower and such Subsidiary concurrently grants to Agent a first priority perfected Lien (subject to Permitted Encumbrances) in all its assets and such Subsidiary executes such documents and takes such actions as may be required by Agent in connection therewith, including making such Subsidiary, at the election of Agent, a Borrower or a Guarantor of the Obligations), may acquire all or substantially all of the assets or all of the Stock of any Person Person, or business unit thereof (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions, each to the reasonable satisfaction of Agent:
(Ai) Agent shall receive reasonable at least ten (and, in any event, not less than 14 days'10) Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) At the time of such Permitted Acquisition and after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing; (B) the sum of all consideration and other amounts payable in connection with all Permitted Acquisitions (including all transaction costs, earn-out or similar payments and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrowers and Target) (the “Acquisition Consideration”) shall not exceed the Acquisition Limit; and (C) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentdate hereof, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) Concurrently with delivery of the notice referred to in clause (i) above, Borrowers shall have delivered to Agent, in form and substance satisfactory to Agent in its reasonable credit judgment:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(Dx) no additional Indebtednessreflect that, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet pro forma basis, Holdings and its Subsidiaries would have had a Leverage Ratio not in excess of Borrower 1.25 to 1.0 for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Section 4.1 prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and Target all Loans funded in connection therewith as if made on the first day of such period), and (y) reflect that, on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition, except ; and
(B) a certificate of the chief financial officer of Borrower Representative to the effect that: (x) Indebtedness otherwise permitted under Section 6.3, Borrowers will be Solvent upon the consummation of the Permitted Acquisition; (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 the Acquisition Pro Forma fairly presents the financial condition of Holdings and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; and (z) ordinary course trade payables Holdings and accrued expenses its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the Targetresults of which investigation were delivered to Agent and Lenders;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(Fiv) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gv) Concurrently with delivery at or prior to the later of (x) the Closing Date and (y) the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the notice referred to in clause (A) aboveTarget, Borrower and Holdings and Borrowers and the Target shall have delivered executed such documents and taken such actions as may be required by Agent in connection therewith, including making Target, at the election of Agent, a Borrower or a Guarantor of the Obligations; and
(vi) on or prior to Agentthe date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, in form and substance reasonably satisfactory to Agent:, and all opinions, certificates, lien search results and other documents reasonably requested by Agent.
Appears in 1 contract
Samples: Credit Agreement (Amedisys Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing:
, except (i) Bermans may be merged with and into Borrower or another Loan Party, (ii) one or more Store Guarantors may acquire be merged with any other Store Guarantor or any Loan Party so long as such Loan Party is the survivor in any merger involving a Loan Party; (iii) cash and financial assets may be transferred among the Loan Parties so long as no Event of Default has occurred and is continuing; (iv) the Stock or fixed assets, Trademarks and Trademark Licenses of Store Guarantors may be transferred to other Store Guarantors or to any Loan Party; (v) the Credit Parties may form new wholly-owned domestic Subsidiaries (other than the Wholesale Subsidiary as defined below); provided that (x) the aggregate initial cash investment in each such new domestic Subsidiary in the form of equity shall not exceed $500,000 and (y) the Credit Parties and each such new domestic Subsidiary shall execute and deliver to Agent forms of the Loan Documents executed by or with respect to the Loan Parties as of the Closing Date; (vi) the Credit Parties may form Joint Ventures to own, lease or operate one or more Stores in one or more domestic airports, as long as the investments therein are permitted pursuant to Section 6.2(c)(vi) and (vii) a Credit Party may form a new Subsidiary which is, directly or indirectly, wholly-owned by Ultimate Parent to carry out the New Wholesale Business (“Wholesale Subsidiary”); provided that (x) the investment in such Wholesale Subsidiary in the form of equity and/or loans from Credit Parties shall not exceed $5,000,000 in the aggregate at any time outstanding and (y) promptly after the formation of such Wholesale Subsidiary (1) such Wholesale Subsidiary shall become a Loan Party under the Credit Agreement, guaranty the Obligations and grant to Agent, for the benefit of Agent and Lenders, a security interest in all or substantially all of the assets or of such Wholesale Subsidiary to secure the Obligations, (2) the applicable Credit Party shall pledge to Agent, for the benefit of Agent and Lenders, all of the Stock of any Person (such Wholesale Subsidiary to secure the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentObligations, and which businesses would not subject (3) Borrower and Wholesale Subsidiary shall deliver such other agreements, documents, opinions, certificates and/or instruments as Agent or any Lender to regulatory or third party approvals reasonably request in connection with the exercise of its rights foregoing (the documentation for such guaranty, security and remedies under this Agreement or any other pledge shall be substantially similar to the applicable Loan Documents other than approvals applicable to the exercise of previously executed with such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved modifications as are reasonably requested by the Target's board of directors (or comparable governing bodyAgent);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Unrestricted Subsidiaries.
(a) No Credit Party shall directly or indirectly, by operation of law or otherwise: (x) form, acquire or own Stock in any Person except for (1) a Restricted Subsidiary that complies with the requirements of Section 6.1(b), (a2) form or acquire any Subsidiaryan Unrestricted Subsidiary that complies with the requirements of Section 6.1(c), (3) Stock in itself to the extent specifically permitted elsewhere in this Agreement, (4) Stock that constitutes a permitted investment by virtue of clauses (A) through (H) of subsection (v) of Section 6.2, or (by) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any PersonPerson except as permitted pursuant to Section 6.1(d). Notwithstanding Every Subsidiary shall be deemed a Restricted Subsidiary unless it qualifies as an Unrestricted Subsidiary pursuant to Section 6.1(c).
(b) Each Restricted Subsidiary must at all times meet all of the foregoingfollowing requirements:
(i) it must be wholly owned by a Credit Party;
(ii) it must be a party to the Subsidiary Guaranty and the Subsidiary Security Agreement; and
(iii) its Stock and any Stock that it owns of any other Person must have been delivered to the Agent in pledge as security for the Obligations, except that no such pledge and delivery shall be required in the case of Stock owned by a Restricted Subsidiary (as opposed to Stock issued by such Restricted Subsidiary) in an Existing Permitted Joint Venture or Acquired Permitted Joint Venture to the extent that the organizational documents of such Existing Permitted Joint Venture or Acquired Permitted Joint Venture in effect at the time of the acquisition thereof prohibit the pledge of its Stock.
(c) Each Unrestricted Subsidiary shall be designated as such by the Borrower and shall constitute either a Permitted Joint Venture or a Permitted Joint Venture Holding Company. All Unrestricted Subsidiaries are listed on Schedule 6.1(c). The Borrower may at any time, subject to compliance with the requirements hereof, redesignate any Unrestricted Subsidiary as a Restricted Subsidiary, but not vice versa, provided that both before and after such redesignation (and after giving effect thereto) no Default or Event of Default shall have occurred and be continuing. The Borrower shall notify the Agent within 5 days of the creation of any Unrestricted Subsidiary or any change in the status of any Unrestricted Subsidiary to a Restricted Subsidiary.
(d) Notwithstanding clause (y) of Section 6.1(a), (1) any Restricted Subsidiary may merge or consolidate with any other Restricted Subsidiary, (2) any Credit Party may acquire Stock in any Unrestricted Subsidiary, subject to the requirements of Section 6.1(c), and (3) any Credit Party may acquire all or substantially all of the assets or all 100% of the Stock of any Person (the an "Acquisition Target") that is or owns a radiology medical practice or radiology medical practice group, medical imaging center or a business that provides services similar or ancillary to those provided by such a practice, practice group, imaging center or similar business or that provides services to such practices, practice groups, imaging centers or similar businesses (provided that the requirement to acquire all or substantially all of the assets of any practice or practice group shall not be deemed to require the acquisition of assets customarily retained by a Managed Practice following such an acquisition), provided that (in the case of this clause (3) only) such transaction meets each caseof the following conditions (each such acquisition that meets the requirements of this clause (3), including this proviso, is hereinafter referred to as a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:):
(Ai) the Agent shall receive reasonable (and, in any event, not less than 14 days') at least 15 days prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of the Acquisition Target and the terms of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in an Acquisition Target operating solely within one or more of the 50 states of the United States and comprising a businessof America or the District of Columbia, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and consensual, shall have been approved by the Acquisition Target's board of directors (or comparable other governing body)authority or its authorized legal representative;
(Diii) no additional Indebtednessthe Agent shall have received on or within 10 days following the closing date of any such Permitted Acquisition: (A)(1) with respect to a Practice Acquisition, Guaranteed Indebtednesscopies of each of the Service Agreements, contingent obligations acquisition or merger agreements, professional employment and non-competition agreements and all other liabilities agreements executed in connection with such acquisition, the terms and conditions of which agreements shall be incurredsubstantially consistent with past practices (which terms and conditions shall include, assumed without limitation, the duration of the Service Agreements and employment agreements, the termination and practice repurchase provisions, practice governance provisions and provisions regarding the assignability as security to the Agent and which terms and conditions the Borrower shall use its reasonable best efforts to cause to include limitations on Managed Practice liabilities), and (2) with respect to other acquisitions, copies of the acquisition or shall otherwise merger agreements and all other agreements executed in connection with such acquisition, and (B) such opinions, certificates, lien search results and other documents as may be reflected reasonably requested by Agent;
(iv) on a consolidated balance sheet or prior to the date of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower Agent shall have delivered to Agentreceived, in form and substance reasonably satisfactory to Agent:, such documents and instruments as it shall require to evidence the joinder of any new Restricted Subsidiary to the Subsidiary Guaranty and Subsidiary Security Agreement and the perfection of all liens created thereunder; and
(v) any seller notes issued in connection with the Permitted Acquisition shall be subordinated to the Obligations upon terms and conditions satisfactory to the Agent; and
(vi) the aggregate consideration (including, without limitation, but without duplication, cash paid, stock issued or Indebtedness or liabilities issued or assumed; the "Total Consideration") to be paid in conjunction with such acquisition shall not exceed $7,500,000 (except in the case of the acquisition of a PPM in which case such Total Consideration shall not exceed $2,500,000), and the Total Consideration to be paid in conjunction with such acquisition together with all other acquisitions made during the preceding twelve months, shall not exceed $25,000,000
(vii) at the time of such acquisition and after giving pro forma effect thereto, no Default or Event of Default shall have occurred and be continuing;
Appears in 1 contract
Samples: Credit Agreement (Radiologix Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwiseotherwise without the prior written consent of the Requisite Lenders (other than the Related Transactions), (a) form or acquire any Subsidiary, Foreign Subsidiary or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person; provided that: any Credit Party may merge, consolidate or liquidate with another Credit Party; provided that if Borrower is a party to such merger or consolidation, Borrower shall be the surviving entity. Notwithstanding the foregoing:
, Borrower (i) Borrower or Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to Borrower), may acquire all or substantially all of the assets or all of the Stock of of, any Person (the "“Target"”) or consummate any Theater Acquisition (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada, shall be in a competitive free film zone and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Loans made hereunder, (B) Indebtedness otherwise permitted under pursuant to Section 6.3, (y6.7(c) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zC) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower and Target) shall not exceed in the aggregate $5,000,000, and 15,000,000 in the sum case of all or any portion of such amounts Permitted Acquisitions funded with the proceeds of the Loans and $25,000,000 for all such Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000Acquisitions;
(Fvi) the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition and after giving effect to cost savings, synergies and other savings approved by Agent;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Holdings and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Holdings and its Subsidiaries would have had a ratio of Funded Debt to EBITDA not in excess of 2.75 to 1.0 for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), (y) average daily Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $1,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $1,000,000 shall continue for at least ninety (90) days after the consummation of such Permitted Acquisition, and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Holdings and Borrower to the effect that: (w) Borrower (after taking into consideration all rights of contribution and indemnity Borrower has against Holdings and each other Subsidiary of Holdings) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Holdings and Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Holdings and Borrower subsequent to the date thereof based upon the historical performance of Holdings, Borrower and the Target and show that Holdings and Borrower shall continue to be in compliance with the financial covenants set forth in Annex G for the 1-year period thereafter; and (z) Holdings and Borrower has completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 The Borrower shall not (and shall not suffer or 6.8permit any of its Domestic Subsidiaries to), no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, liquidate into, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquirewith, any Person. Notwithstanding the foregoingPerson or acquire any Subsidiary; provided that:
(ia) any Domestic Subsidiary of the Borrower may merge, consolidate with or liquidate into any other Domestic Subsidiary of the Borrower; and
(b) the Borrower or any of its Domestic Subsidiaries may acquire all or substantially all of the assets or all of the Stock or other ownership interests of any Person (the "“Target") (”), in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but case subject to the satisfaction of each of the following conditions:conditions of this Section 6.1 (any such acquisition of a Target, a “Permitted Acquisition”):
(A) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bi) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by the Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentEffective Date, and which businesses business would not subject the Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to the Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(Eii) the sum of all amounts paid or payable in connection with any single such Permitted Acquisition (including all transaction costs and all IndebtednessDebt, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of the Borrower and the Target, together with the sum of all such amounts paid or payable for all such prior Permitted Acquisitions made in the then current Fiscal Year of the Borrower (collectively, “Prior Permitted Acquisitions”) and the sum of all amounts paid or payable for all Permitted Investments made in the then current Fiscal Year of the Borrower in accordance with Section 6.2(g) shall not exceed $5,000,000, and 200,000,000 in the sum of such amounts for all Permitted Acquisitions aggregate in any Fiscal Year of the Borrower (the “Cap”); provided that any consideration paid or payable to a Target in connection with a Permitted Acquisition that consists either of (x) Stock of the Borrower or (y) other securities convertible into or exercisable for Stock of the Borrower that are not required to be reflected as liabilities on the balance sheet of the Borrower in accordance with GAAP, shall not exceed $15,000,000be included in the calculation of the Cap;
(Fiii) (A) the business and assets acquired in Fixed Charge Coverage Ratio for each Rolling Period at the end of each of the four full Fiscal Quarters immediately following the closing of such Permitted Acquisition shall be free projected to be equal to or greater than 1.25 to 1.00; (B) at all time during the thirty (30) days prior to the actual date of consummation of such Permitted Acquisition and clear immediately following the actual date of all Liens consummation of such Permitted Acquisition, Net Borrowing Availability shall be the greater of (other than i) at least 30% of the Maximum Amount or (ii) at least $30,000,000; and (C) the Borrower shall deliver to Agent, at least five (5) days prior to the consummation of such Permitted EncumbrancesAcquisition, a certificate of the chief financial officer of the Borrower, in form and substance acceptable to the Agent, certifying that the above conditions in this Section 6.1(b)(iii) have been met (and showing in reasonable detail the calculations used in determining compliance);
(Giv) Concurrently with delivery of the notice referred to in clause Agent shall have received, (A) aboveprior to the date of such Permitted Acquisition, Borrower shall have delivered to drafts of the acquisition agreement for such Permitted Acquisition and of all related agreements, instruments, opinions, certificates and other documents reasonably requested by the Agent, and (B) no later than five (5) Business Days after the date of such Permitted Acquisition, copies of the executed acquisition agreement, related agreements and instruments for such Permitted Acquisition, and all opinions, certificates and other documents reasonably requested by the Agent, in form and substance reasonably satisfactory to the Agent:;
(v) the Borrower shall have complied with its obligations under Sections 5.10, 5.15 and 5.17 with respect to such Permitted Investment; and
(vi) both before and after giving effect to such Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing; provided, that, notwithstanding the foregoing, the Inventory of the Target shall not be included in Eligible Inventory without the prior written consent of the Agent and the Requisite Lenders.
Appears in 1 contract
Samples: Credit Agreement (Synnex Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party nor any of its Subsidiaries shall directly or indirectly, by operation of law or otherwise, except in the case of any special purpose corporation formed in connection with any accounts receivable securitization facility to which Borrower and GE Capital are parties, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person, other than (x) a merger of an Other Subsidiary, with a Credit Party or other person in connection with the sale or other disposition of the assets or Stock of the Other Subsidiary and (y) the investment in the distributor of Borrower's products in Ireland contemplated by Section 6.2(g) and -------------- (z) the acquisition of other current assets pursuant to clause (c)(ii) of Section 6.2. Notwithstanding the foregoing:
(i) , Borrower may acquire all or ----------- substantially all of the assets or all of the Stock of any Person (the "Target") ------ (in each case, a "Permitted Acquisition", including without limitation the --------------------- acquisition of distribution rights pursuant to clause (c)(i) with the consent of Requisite Lenders or without consent of Agent or Requisite LendersSection 6.2), but ------------- ----------- subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least ten (and, in any event, not less than 14 10) days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations (with contingent obligations other than Indebtedness being valued in accordance with GAAP) incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and in the sum case of such amounts for all Permitted Acquisitions in Acquisitions, $25,000,000 during any Fiscal Year shall not exceed and $15,000,000100,000,000 during the term hereof;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) Concurrently (A) at the closing of any Permitted Acquisition of assets or any Permitted Acquisition of Stock of a Target which is to become a Domestic Subsidiary of Borrower, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith, and the Target shall execute a joinder to this Agreement and become a Credit Party hereunder and (B) at or prior to the closing of any Permitted Acquisition of Stock of a Target (other than a Target which is to become a Domestic Subsidiary of Borrower), Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances described in clause ------ (a) of the definition thereof) in the Stock of the Target, provided that the --- -------- proportionate voting power of the Stock of the Target which is subject to the security interest described in this clause (B) shall not exceed two-thirds of ---------- the combined voting power of all Stock of the Target;
(viii) concurrently with delivery of the notice referred to in clause ------ (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably --- satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro --------------- Forma"), based on recent financial statements, which shall be complete and ----- shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Borrower and its Subsidiaries would have had a ratio of Funded Debt to Adjusted EBITDA not in excess of 2.25 to 1.0 for the period of four Fiscal Quarters then most recently ended, as reflected in a certificate of the Chief Financial Officer of Borrower delivered to Agent prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), (y) average daily Net Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $18,000,000 on a pro forma basis (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Net Borrowing Availability of $18,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (z) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a ----------------------- recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower subsequent to the date thereof based upon the historical performance of Borrower and the Target and show that Borrower shall continue to be in compliance with the financial covenants set forth in Annex G for the three (3) year period thereafter; and (z) Borrower has ------- completed its due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(ix) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(x) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, the Receivables and Inventory of the Target shall not be included in Eligible Receivables and Eligible Inventory without the prior written consent of Agent and Requisite Lenders.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, other than (i) transactions permitted pursuant to SECTION 6.2, and (ii) the merger or consolidation of a Credit Party into another Credit Party, so long as the Credit Party surviving is a Borrower, if such merger or consolidation involved such Borrower. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "TargetTARGET") (in each case, a "Permitted AcquisitionPERMITTED ACQUISITION") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 days') at least 15 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada (or, in the case of a proposed marketing company to be established by Borrowers, Mexico, subject to the consent of Agent, which consent will not be unreasonably withheld) and comprising a business, or those assets of a business, of the type engaged in by Borrower Credit Parties as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary directly related thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than (A) approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition and (B) approvals required in connection with the transfer of any FCC Licenses acquired in such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities (other than ordinary indemnity obligations contained in the purchase agreement) shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables payables, accrued expenses, secured Indebtedness of Target which would be permitted under SECTION 6.3(a)(i) and accrued expenses unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(Fvi) the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause CLAUSE (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and their Subsidiaries (the "ACQUISITION PRO FORMA"), based on recent financial statements, which shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and their Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in ANNEX G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to ANNEX E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the 3-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "ACQUISITION PROJECTIONS") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of each Borrower to the effect that: (w) each Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in ANNEX G for the 3-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, if any, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of SECTION 5.9;
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing;
(xii) Agent and Lenders shall have consented in writing to such Permitted Acquisition and Borrowers shall have reimbursed Agent for all fees, costs and expenses of its review thereof (including, without limitation, fees, charges and disbursements of counsel);
(xiii) If applicable, at the time of any Permitted Acquisition, Borrowers shall cause each of the FCC Licenses being acquired by a Borrower or any of its Subsidiaries to be transferred to one or more License Subs. Promptly after the transfer of the FCC Licenses to the License Subs, Borrowers shall provide to Agent copies of any required consents to such transfer from the FCC and any other Governmental Authority, together with a certificate of Borrower Representative stating that all necessary authorizations relating to such transfer have been obtained or made, are in full force and effect and are not subject to any pending or, to their knowledge, threatened reversal or cancellation; and
(xiv) If applicable, within thirty (30) days after the consummation of any Permitted Acquisition, Borrowers shall file any Ownership Reports required to be filed with the FCC.
Appears in 1 contract
Samples: Credit Agreement (Radio Unica Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person; provided that the provisions of this Section 6.1 shall not prohibit (i) the formation of the Receivables Subsidiary, (ii) the merger, consolidation or other combination of any Subsidiary of Debtor (other than the Receivables Subsidiary, the Existing Foreign Subsidiaries, LR Assurance and Workers' Assurance) with Debtor or any other Subsidiary of Debtor (other than the Receivables Subsidiary, the Existing Foreign Subsidiaries, LR Assurance and Workers' Assurance) or the sale of all or substantially all of the assets or capital stock of any Subsidiary of Debtor (other than the Receivables Subsidiary) to Debtor or any other Subsidiary of Debtor (other than the Receivables Subsidiary, the Existing Foreign Subsidiaries, LR Assurance and Workers' Assurance), or (iii) the sale or contribution of the Credit Parties' Receivables Assets pursuant to the Receivables Sale Agreements. Notwithstanding the foregoing:
(i) Borrower , Debtor, may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent the Creditor shall receive reasonable (and, in any event, not less than 14 have received at least 30 days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such the Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, business of the type engaged in by Borrower as the Debtor,
(iii) the Permitted Acquisition shall be consensual and approved by the Target's Board of Directors;
(iv) the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals acquisition price payable in connection with such Permitted Acquisitions, together with the exercise aggregate acquisition price paid in connection with all other Permitted Acquisitions consummated during the Fiscal Year, shall not exceed $15,000,000;
(v) the business and assets acquired in such Permitted Acquisitions shall be free and clear of all Liens;
(vi) the Debtor shall be the surviving entity;
(vii) the Creditor shall have received a proforma balance sheet and income statement and cash flow statement of the Debtor and its rights Subsidiaries ("Acquisition ProForma") based on the most recent financial statements which shall be complete and remedies under this Agreement or any other Loan Documents other than approvals applicable shall fairly present the financial condition of the Debtor and its Subsidiaries taking into account such Permitted Acquisition, and such Acquisition Proforma shall reflect that (A) the average aggregate daily Excess Liquidity for the 60 day period preceding the consummation of such Permitted Acquisition would have exceeded $25,000,000 on a proforma basis and (B) after giving effect to such acquisition, Debtor would have been in compliance with the required financial covenants for the four quarter period reflected in the compliance certificate most recently delivered to Creditor prior to the exercise consummation of the proposed acquisition,
(viii) the Creditor shall have received a balance sheet and income statement and cash flow statement projections of the Debtor and its Subsidiaries ("Acquisition Projections"), which shall reflect that such rights and remedies average aggregate daily Excess Liquidity, after giving effect to payment of accounts payable (including those assumed in connection with respect to Borrower prior to such Permitted Acquisition) consistent with past practices, of at least $25,000,000 shall continue for at least 60 days after the consummation of such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(Dix) no additional Indebtednessindebtedness, Guaranteed Indebtednessguaranteed indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower such Debtor and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zA) ordinary course trade payables and accrued expenses (to the extent of current assets being acquired of the Target) and (B) unsecured indebtedness of the Target (to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition); provided, however, that; unsecured indebtedness, contingent obligations (excluding "earn-outs" from future earnings of the acquired entity) and other liabilities may be assumed in the acquisition or retained by the Target after giving effect to the acquisition if the aggregate amount of such unsecured indebtedness, contingent obligations or other liabilities does not exceed 30% of the total acquisition price of the Permitted Acquisition;
(Ex) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) Target shall not exceed $5,000,000have incurred a loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's Financial Statements (computed on a pro forma basis excluding Target's private ownership expenses to the extent such expenses will not be continuing after giving effect to the Acquisition), and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000be projected to have a loss during the twelve-month period following the date of the Permitted Acquisition, based on reasonable projections with respect to the Target contained in the Acquisition Projections;
(Fxi) the business and assets acquired in Creditor shall have received a copy of the acquisition agreement; and
(xii) at the time of such Permitted Acquisition shall be free and clear Acquisition, no Default or Event of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower Default shall have delivered to Agent, in form occurred and substance reasonably satisfactory to Agent:be continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any PersonPerson (except that a domestic Subsidiary of Borrower may be merged into Borrower). Notwithstanding the foregoing:
(i) , Borrower may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least fifteen (and, in any event, not less than 14 days'15) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets principally located in the United States and/or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of 25,000,000 for such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000during the term hereof;
(Fvi) the Target shall not have incurred an operating loss for the trailing twelve month period preceding the date of the Permitted Acquisition, as determined based upon the Target's Financial Statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and capital stock of the Target, and Borrower and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Net Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $2,500,000 on a pro forma basis (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Net Borrowing Availability of $2,500,000 shall continue for at least ninety (90) days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrower (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrower subsequent to the date thereof based upon the historical performance of Borrower and the Target and show that Borrower shall continue to be in compliance with the financial covenants set forth in Annex G for the three (3) year period thereafter (or, if less, the remaining term of this Agreement); and (z) Borrower has completed its due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent and Requisite Revolving Lenders.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall, nor shall such Credit Party permit any of its Subsidiaries to, directly or indirectly, by operation of law or otherwise, (ax) form or acquire any Subsidiary, or (by) merge or amalgamate with, consolidate with, acquire all or substantially all of the assets or Stock Equity Interests of, or otherwise combine with or acquire, any Person. Notwithstanding the foregoing, except:
(i) U.S. Borrower or any other Credit Party may acquire all or substantially all of the assets or all of the Stock Equity Interests of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(A) Administrative Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in on a consolidated balance sheet of Borrower Holdings and Target) in connection with any (i) Permitted Joint Venture Acquisition (excluding the Initial Permitted Joint Venture Acquisitions) shall not exceed $5,000,000, 20,000,000 annually and $75,000,000 in the sum aggregate during the term of such amounts for all this Agreement and (ii) Permitted Acquisition (excluding the Initial Permitted Joint Venture Acquisitions in and any Fiscal Year Permitted Joint Venture Acquisition) shall not exceed $15,000,00040,000,000 annually and $125,000,000 in the aggregate during the term of this Agreement;
(FC) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(GD) Concurrently with delivery at the closing of any Permitted Acquisition (or 30 days or such longer period as Administrative Agent may agree to in its reasonable discretion in the case of assets that can not reasonably be pledged to the Collateral Agent at or prior to the closing of a Permitted Acquisition), Collateral Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Equity Interests of the notice referred to in clause (A) above, Borrower shall have delivered to AgentTarget, in form and substance reasonably satisfactory each case subject to Agent:the terms of Section 5.10
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no (a) No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, Subsidiary or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person, other than as contemplated by the Xxxxxx Acquisition. Notwithstanding the foregoing:
(i) foregoing prohibition, Borrower or any wholly owned Domestic Subsidiary of Borrower may acquire all or substantially all of the assets or all of the capital Stock of any Person (the "TargetTARGET") (in each case, a "Permitted AcquisitionPERMITTED ACQUISITION") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) the Agent shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition (including, without limitation, a summary of any environmental, health or safety claims, liabilities and costs resulting from the proposed Permitted Acquisition;); [EXECUTION VERSION]
(Bii) such Permitted Acquisition shall only involve a business, or those assets of a business, located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by the Borrower as of the Closing Effective Date and other businesses that, (but in no event shall such acquired business engage primarily in the good faith judgment treatment, recycling, storage or disposal of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentany Contaminant), and which businesses acquired business would not subject the Agent, Co-Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to the Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors and shareholders (or comparable equivalent governing bodybodies), as necessary;
(Div) no additional Indebtedness, Guaranteed IndebtednessAccommodation Obligations, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and (C) Indebtedness assumed pursuant to a Permitted Acquisition, PROVIDED that (x) the aggregate principal amount of such Indebtedness shall be included in determining the amount of the Investment in such Permitted Acquisition and (y) such Indebtedness shall be paid in full on or before the second Business Day after the closing of such Permitted Acquisition;
(Ev) the sum amount of all amounts payable the Investment in connection with any single such Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and 3,000,000 nor shall the sum aggregate amount of such amounts for all Investments in Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,00010,000,000;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted EncumbrancesEncumbrances and Liens which (A) do not apply to any Property of the Borrower or its Subsidiaries other than the assets acquired in the Permitted Acquisition and (B) are removed no later than the second Business Day after the closing of the Permitted Acquisition);
(Gvii) Concurrently with delivery at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances and other Liens described in CLAUSE (vi) of this SECTION 6.1(a)) in all assets acquired pursuant thereto or in the assets and capital stock of the notice referred to in clause (A) aboveTarget, and Borrower and the Target shall have delivered to executed such documents and taken such actions as may be required by Agent in connection therewith; [EXECUTION VERSION]
(viii) within twenty (20) Business Days after the date of such Permitted Acquisition, the Agent shall have received the agreements entered into in connection with the Permitted Acquisition and all opinions, certificates, lien search results, environmental reports, title insurance policies, evidence of compliance with (or exemption from) bulk sales laws, surveys, zoning letters, certificates of occupancy, appraisals and other documents reasonably requested by the Agent, including an assignment of rights in form respect of the Borrower's rights under the related Permitted Acquisition agreements, which assignment shall be expressly permitted under such Permitted Acquisition agreement or shall have been consented to by the Target in writing; and
(ix) at the time of such Permitted Acquisition and substance reasonably satisfactory after giving effect thereto, no Potential Event of Default or Event of Default shall have occurred and be continuing or would result therefrom. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent and Requisite Revolving Lenders.
(b) The Credit Parties shall not, and shall cause their Foreign Subsidiaries (other than Kaynar Femipari) not to, increase the value of any such Subsidiary's assets by more than 25% of the value of such Subsidiary as of the Effective Date unless the Credit Parties shall have taken, and shall have caused such Subsidiaries to Agent:have taken, all actions requested by the Agent to register and otherwise perfect the Lenders' security interest in 65% of the capital Stock of such Subsidiaries under applicable Requirements of Law.
(c) The Credit Parties shall not, and shall cause Kaynar Femipari not to, allow the value of Kaynar Femipari's assets to exceed $3,000,000 at any time.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or -------------------------- indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except (i) any wholly-owned Domestic Subsidiary of Borrower (other than IC Sensors, Elekon, Entran Devices and Intermediate Holdings) may merge with and into Borrower or another wholly-owned Domestic Subsidiary of Borrower (so long as Borrower is the surviving entity in any merger involving Borrower), (ii) Entran Devices may merge with and into Entran Devices LLC (so long as Entran Devices LLC is the surviving entity) and (iii) any wholly-owned Foreign Subsidiary of Borrower may merge with another wholly-owned Foreign Subsidiary of Borrower. Notwithstanding the foregoing:
(i) Borrower , Borrower, may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each ------ case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the --------------------- following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 days') at least 20 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower the Credit Parties as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Indebtedness or Guaranteed Indebtedness, contingent obligations or other liabilities Indebtedness shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) to the extent such Indebtedness otherwise or Guaranteed Indebtedness is permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under 6.3 or Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;6.6; ----------- -----------
(Ev) the sum of purchase price and all other amounts payable by the Credit Parties in connection with any single Permitted Acquisition (Acquisition, including all transaction costs and all IndebtednessLoans made hereunder related thereto, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,00040,000,000 (and, and the sum of such amounts for all with respect to Permitted Acquisitions in any Fiscal Year by Foreign Subsidiaries of Borrower, such purchase price shall not exceed $15,000,000be paid from cash and cash equivalents of the Foreign Subsidiaries prior to use of cash and cash equivalents of the Borrower and its Domestic Subsidiaries);
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto by a US Credit Party or in the assets and Stock of the Target which is a US Credit Party (and in 66% of Stock held by the US Credit Parties of any Target which is a Foreign Subsidiary of a US Credit Party), and the Credit Parties and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(viii) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower shall have delivered to Agent, in form and substance ---------- reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrower and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which --------------------- shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrower and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Borrower and its Subsidiaries would have had (1) a Senior Leverage Ratio not in excess of 2.0 to 1.0, and (2) a Total Leverage Ratio not in excess of 2.5 to 1.0, in each case, calculated using EBITDA for the twelve Fiscal Month period ended at the end of Fiscal Month for which financial statements have most recently been required to delivered to Agent pursuant to paragraph (a) of Annex E prior to the consummation of such Permitted Acquisition (as ------- adjusted for such Permitted Acquisition in accordance with clause (y) of the second sentence of the definition of EBITDA and Section 6.1(viii)(D) -------------------- below) and calculated using Senior Indebtedness and Indebtedness, as applicable, after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as of the date of such Permitted Acquisition, (y) Borrowing Availability (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith) shall be no less than $5,000,000, and
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) except as otherwise permitted in connection with a Permitted Acquisition, form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower and any other Credit Party may merge into any Borrower, provided that Borrower Representative shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
foregoing clause (i) Borrower b), any Borrower, may acquire or, subject to the last sentence of this Section 6.1, form a Subsidiary to acquire, all or substantially all a material portion of the assets or all of the Stock of any Person in a single transaction or in a series of related transactions (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable with respect to any proposed Permitted Acquisition involving a purchase price consideration (andinclusive of any assumption of liabilities) in excess of $5,000,000, in any event, not less than 14 days'Agent shall have received at least fifteen (15) Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition, and with respect to any proposed Permitted Acquisition involving a purchase price consideration (inclusive of any assumption of liabilities) in excess of $50,000,000, Requisite Lenders shall have consented to such Proposed Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of of, or similar to, the type types engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing other similar body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations and/or the stockholders or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses equityholders of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Giv) Concurrently concurrently with delivery of the notice referred to in clause (Ai) above, Borrower with respect to any Permitted Acquisition involving a purchase price consideration (inclusive of any assumption of liabilities) in excess of $10,000,00015,000,000, Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and their respective Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and their respective Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith;
(B) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer or treasurer of each Borrower to the effect that: (w) each Borrower (after taking into consideration all rights of contribution and indemnity such Borrower has against each other Subsidiary of each Borrower) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G Financial Covenant for the 3-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(v) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and all other material documents relating thereto ;in draft form prior to the date of such Permitted Acquisition and final executed copies delivered within 10 days following the date of such Permitted Acquisition;
(vi) at the time of such Permitted Acquisition and after giving effect thereto, (x) Borrowing Availability of all Borrowers exceeds (1) $20,000,000 for with respect to any Permitted Acquisition involving a purchase price consideration of less than or equal to $25,000,000 or less and (2) $50,000,000 for any Permitted Acquisition involving a purchase price consideration in excess of $25,000,000 and (y) no Default or Event of Default has occurred and is continuing; andindividually and the Aggregate Permitted Acquisition Limit, (x) for a period of thirty (30) consecutive days immediately prior to such Permitted Acquisition and (y) for a period of thirty (30) consecutive days after giving effect thereto, Borrowing Availability for all Borrowers exceeds $20,000,000;
(vii) with respect to any Permitted Acquisition involving a purchase price consideration greater than $25,000,000 but less than or equal to $50,000,000 individually and the Aggregate Permitted Acquisition Limit, (x) for a period of thirty (30) consecutive days immediately prior to such Permitted Acquisition and (y) for a period of thirty (30) consecutive days after giving effect thereto, Borrowing Availability for all Borrowers exceeds $50,000,000; and
(viii) (vii)with respect to any Permitted Acquisition involving a purchase price consideration in excess of $25,000,000 (x) after giving effect to such Permitted Acquisition and50,000,000 individually or the Aggregate Permitted Acquisition Limit, (x) (i) for a period of thirty (30) consecutive days immediately prior to such Permitted Acquisition and (ii) for a period of thirty (30) consecutive days after giving effect thereto, Borrowing Availability for all Borrowers exceeds $50,000,000 and (y) Borrowers shall have a Fixed Charge Coverage Ratio of not less than 1.25 1.15 to 1.00 as of the last Fiscal Quarter for the 12-month prior to such Permitted Acquisition for which financial statements have been delivered pursuant hereto for the twelve-month period then ended (calculated on a pro forma basis after giving effect to such Permitted Acquisition). Notwithstanding the foregoing, (a) the Accounts, Inventory, Equipment and Real Estate of the Target shall not be included in Eligible Accounts, Eligible Inventory, Eligible Equipment and Eligible Real Estate until (x) Agent determines, on the basis of any field examinations and appraisals conducted by it in connection with such Permitted Acquisition, the appropriate advance rates and Reserves applicable thereto and (y) such assets become subject to the first priority perfected security interests of Agent and otherwise meet the eligibility criteria which apply to such assets and (b) whether or not the assets thereof become part of the Borrowing Base, if a new Subsidiary is formed in connection with any Permitted Acquisition, or, if the Permitted Acquisition is of Stock of a Person which, upon consummation thereof, would become a Subsidiary, such Subsidiary shall (i) if a domestic Subsidiary, (x) become a Credit Party hereunder, (y) enter into a guaranty and a security agreement, each in form and substance identical to the Subsidiary Guaranty and the Security Agreement, and (z) take such other action as may be reasonably requested by Agent to have the assets of such Subsidiary become subject to the first priority perfected security interests of Agent, and (ii) if a foreign Subsidiary, take such action as may be reasonably requested by Agent to have 51% of the Stock of such foreign Subsidiary to be pledged to Agent and subject to the first priority perfected security interest of Agent provided that if such .foreign Subsidiary is a “check the box” subsidiary, 100% of the stock shall be pledged to Agent and subject to the first priority perfected security interest of Agent.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 No Obligor shall, or 6.8shall cause or permit any Subsidiary thereof to, no Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with, any Person or form any Subsidiary other than (i) a merger, consolidation or combination with, or the acquisition of assets of, any Subsidiary of Holdings with or acquireby any other Subsidiary of Holdings or (ii) a merger, consolidation or other combination with or the acquisition of assets or capital stock of another Person (other than Holdings) not described in the preceding clause (i); PROVIDED, THAT if any Persontransaction described in the preceding clauses (i) or (ii) involves (A) a Borrower, a Borrower shall be the surviving entity, (B) an Obligor (but not a Borrower), an Obligor shall be the surviving entity or (C) a Subsidiary of Holdings (but not a Borrower or an Obligor), a Subsidiary of Holdings shall be the surviving entity. Notwithstanding the foregoing, any merger, consolidation, combination, or acquisition (each, a "PERMITTED ACQUISITION") with any Person or of the assets of any Person permitted in accordance with clause (ii) above, shall be subject to the following conditions precedent:
(i) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Aa) Agent shall receive reasonable at least twenty (and, in any event, not less than 14 days'20) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bb) such Permitted Acquisition shall only be of a Person engaged in, or involve assets located in dedicated to, the United States and comprising same or a business, or those assets of a business, of substantially similar business to the type businesses engaged in by Borrower one or more of Borrowers as of the Closing Date and other businesses that, Date;
(c) such Permitted Acquisition shall not be with respect to Persons or assets located in jurisdictions against which the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would United States has imposed economic sanctions;
(d) such Permitted Acquisition will not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Obligors prior to such Permitted Acquisition;
(Ce) each such Permitted Acquisition of a Person shall be consensual and shall have been approved by the Targetsuch Person's board of directors (or comparable governing body)and, as applicable, shareholders;
(Df) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Holdings and Target its Subsidiaries after giving effect to such Permitted Acquisition, except (xi) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 obligations to trade creditors incurred in the ordinary course of business and (zii) ordinary course trade payables as permitted in accordance with SECTIONS 6.3 and accrued expenses of the Target6.6;
(Eg) except as specified in clause (h) below, in the sum case of all amounts payable in connection with any single Permitted Acquisition of any Person, at or prior to the closing thereof the Agent on behalf of the Lenders shall have received perfected Liens on all of such Person's assets, real and personal, subject only to Liens permitted in accordance with SECTION 6.7 hereof and other existing Liens approved in writing in advance by Agent (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) which approval shall not exceed $5,000,000be unreasonably withheld), and the sum capital stock or other ownership interest of such amounts Person shall be pledged and delivered to Agent, for the benefit of Lenders, all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000on terms reasonably acceptable to the Agent;
(Fh) in the business case of any Permitted Acquisition of a Person located outside of the United States as to which the application of clause (g) above would result in a material incremental tax liability under Section 956 of the IRC, the capital stock or other ownership interest of such Person shall be contributed to WNG Holdings (International) Ltd. or another intermediate domestic holding company approved in writing in advance by Agent (which approval shall not be unreasonably withheld), all of the capital stock of which shall be pledged to the Agent for the benefit of Lenders, and assets 65% of the capital stock or other ownership interest of such Person to be acquired in shall be pledged to the Agent for the benefit of the Lenders, all on terms satisfactory to the Agent;
(i) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be free and clear of all Liens (other than Permitted Encumbrances)continuing;
(Gj) Concurrently with delivery of the notice referred to in clause CLAUSE (A) above, Borrower Holdings shall have delivered to Agent, in form and substance satisfactory to Agent a pro forma consolidated balance sheet of Holdings and its Subsidiaries, based on recent financial data, which shall be complete and shall accurately and fairly represent the assets, liabilities, financial position and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Revolving Credit Advances in connection therewith, together with a certificate of Holdings' Chief Financial Officer stating that, based on such pro forma balance sheet, Borrowing Availability shall be at least $15,000,000 (on a pro forma basis after giving effect to such Permitted Acquisition, with trade payables being paid currently and expenses and liabilities being paid in the ordinary course of business, and without acceleration of sales) after giving effect to such Permitted Acquisition and all Revolving Credit Advances funded in connection therewith;
(k) the aggregate principal amount of all Revolving Credit Advances funded in connection with a Permitted Acquisition, together with all prior Permitted Acquisitions, shall not exceed $50,000,000, subject to the further limitations set forth in SECTION 6.21(IV); and
(l) reasonably prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent:, all opinions, certificates, lien search results and other documents, including acquisition agreements, reasonably requested by Agent, including proof of regulatory compliance.
Appears in 1 contract
Samples: Credit Agreement (Weider Nutrition International Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no (a) No Credit Party shall directly or indirectly, by operation of law or otherwise, (ax) form or acquire any Subsidiary, or (by) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding Person (other than the foregoingAcquisition consummated on the Closing Date), except that:
(ib) Any Borrower (or Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to such Borrower), may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least twenty (and, in any event, not less than 14 days'20) Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses thatreasonably related thereto (including, any complementary businesses related to the businesses engaged in by Borrowers on the good faith judgment Closing Date at the Parks so long as such complementary businesses are conducted at and confined to the Parks of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation type and character owned and operated by Borrowers on the leasing of medical equipmentClosing Date), and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to such Borrower prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Indebtedness or Guaranteed Indebtedness, contingent obligations or other liabilities Indebtedness shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3Loans made hereunder, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition, (C) Capital Lease Obligations and purchase money debt (including any mortgage loans) assumed in connection with such Permitted Acquisition, provided that (in the case of this clause (C)) the aggregate principal amount of all such Capital Lease Obligations and purchase money debt (including any mortgage loans) so assumed, together with all outstanding Capital Lease Obligations and purchase money debt (including any mortgage loans) permitted to be incurred after the Closing Date under Section 6.3(a)(i) does not at any time exceed $5,900,000;
(Ev) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) Target shall not exceed $5,000,000have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the sum date of consummation of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000Acquisition;
(Fvi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gvii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets (whether real, personal or mixed) to the extent required hereunder (including under Section 5.9 and Section 5.11 hereof), acquired pursuant thereto and in the assets and Stock of the Target, and Holdings and Borrowers and the Target shall have executed such documents (including, in the case of the Target, a guarantee) and taken such actions as may be required by Agent in connection therewith;
(viii) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Representative shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Borrowers and their Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Borrowers and their Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, Borrowers would be in compliance with all of the Financial Covenants for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower Representative to the effect that: (w) the Credit Parties taken as a whole will be Solvent and (ii) Festival and each Significant Subsidiary is and will be Solvent (after taking into consideration all rights of contribution and indemnity Festival or such Subsidiary has against Holdings and each other Subsidiary of Holdings) upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly in all material respects presents the financial condition of Borrowers and their Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers and their Subsidiaries subsequent to the date thereof based upon the historical performance of Borrowers, their Subsidiaries and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the three-year period thereafter; and (z) Holdings and Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(ix) on or prior to the date of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9;
(x) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing; and
(xi) the aggregate amount of consideration paid in respect of all such Permitted Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of such Borrowers, their Subsidiaries and Target) shall not exceed $5,000,000 in any fiscal year, and $10,000,000 in the aggregate after the Closing Date for all such Permitted Acquisitions, provided, however that (x) any cash equity contributions made by Sponsor to Holdings to fund such Permitted Acquisitions shall not count against the dollar limitations in this Section 6.1(b)(xi) to the extent and only to the extent that such cash equity contribution are in fact used to fund the consideration paid in respect of such Permitted Acquisitions at the time such consideration is required to be paid under the applicable acquisition agreement, and (y) any consideration in the form of Stock of Holdings paid to seller to fund such Permitted Acquisitions shall not count against the dollar limitations in this Section 6.1(b)(xi) to the extent and only to the extent that such Stock is in fact used to fund the consideration paid in respect of such Permitted Acquisitions at the time such consideration is required to be paid under the applicable acquisition agreement. Notwithstanding anything to the contrary in this Section 6.1(b), in the case of any Permitted Acquisitions where individually or in the aggregate the amount of consideration paid or to be paid in connection with all Permitted Acquisitions previously consummated and the subject acquisition proposed to be consummated (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of such Borrower and Target) does not exceed $2,500,000, (A) Borrower Representative shall only be required to give Agent five (5) Business Days’ prior notice of such proposed Permitted Acquisition, together with a reasonably detailed description thereof, (B) Borrowers shall only be required to comply with clauses (ii), (iii), (iv), (v), (vi), (vii), (x) and (xi) of Section 6.1(b), provided, however, that in respect of clause (v) of this Section 6.1(b), the Target may have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition so long as Agent receives from Borrower Representative projections in form and substance reasonably satisfactory to Agent showing that, on a pro forma basis, Target will have positive EBITDA for the twelve full consecutive months immediately succeeding the date of consummation of such Permitted Acquisition; and (C) promptly (and in any event within 15 days) after the date of consummation of such Permitted Acquisition, Agent shall have received copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 5.9;
(c) any Subsidiary (other than a Borrower) of a Borrower may be merged or consolidated with or into such Borrower (provided that such Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor shall be the continuing or surviving corporation);
(d) any Credit Party may at any time after the Closing Date form a Subsidiary so long as at the time of formation thereof, such Credit Party causes such Subsidiary to become a Subsidiary Guarantor and fully complies with all of the requirements of Section 5.11; and
(i) any Subsidiary of any Borrower may dispose of any or all of its assets to a Borrower (upon voluntary liquidation or otherwise) or to a Subsidiary Guarantor, and (ii) any Credit Party may dispose of any of its assets in connection with any disposition expressly permitted by Section 6.8(g).
Appears in 1 contract
Samples: Credit Agreement (Palace Entertainment Holdings, Inc.)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that a wholly-owned direct or indirect Domestic Subsidiary of a Borrower may merge (i) with such Borrower so long as such Borrower is the sole survivor of any such merger; provided, that in the case of any merger to which Finlay is a party, Finlay shall be the sole survivor of any such merger or (ii) with another wholly-owned direct or indirect Domestic Subsidiary of such Borrower. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable at least ten (and, in any event, not less than 14 days'10) Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include such information with respect thereto as Agent may reasonably request, including (i) the proposed date and the amount of the acquisition, (ii) a reasonably detailed list and description of the assets or Stock to be acquired, (iii) the total purchase price for the assets to be purchased (and the terms of the payment of such proposed Permitted Acquisitionpurchase price), (iv) a summary of the due diligence undertaken by such Borrower in connection with such acquisition, and (v) appropriate financial statements of Target;
(Bii) such Permitted Acquisition shall only involve assets located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations (excluding contingent obligations arising as a result of a purchase price adjustment or “earn-out” or similar provision) or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 Loans made hereunder and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts payable in connection with any single all Permitted Acquisition Acquisitions consummated after the Closing Date (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall not exceed $5,000,000, 50,000,000 and the sum of such amounts portion thereof allocable to goodwill and intangible assets for all such Permitted Acquisitions in any Fiscal Year during the term hereof shall not exceed $15,000,00025,000,000;
(Fvi) the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Parent and Borrowers and the Target shall have executed such documents and taken such actions as may be reasonably required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Parent and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Parent and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans (if any) in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability of all Borrowers for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $90,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans (if any) funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Borrowing Availability of $90,000,000 shall continue for at least ninety (90) days after the consummation of such Permitted Acquisition, and (y) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period most recently ended prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans (if any) funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of each Borrower to the effect that: (w) each Borrower will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Parent and Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Borrowers subsequent to the date thereof based upon the historical performance of Borrowers and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the 3-year period thereafter; and (z) Borrowers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of Section 5.9; and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts and Eligible Inventory without the prior written consent of Agent.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any PersonPerson (other than the merger or consolidation of a Borrower with another Borrower, a Subsidiary Guarantor with another Subsidiary Guarantor, or a Subsidiary Guarantor with Borrower, with Borrower as the surviving entity). or (b) form or acquire any Subsidiary. Notwithstanding the foregoing:
(i) Borrower , any Credit Party may form a Subsidiary or otherwise acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 30 days') ’ prior written notice of the expected consummation date of each such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall be consensual (i.e., it shall not involve a hostile takeover);
(iii) such Permitted Acquisition shall only involve assets located in the United States and Canada comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, or reasonably related thereto in the Agent’s good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentcredit judgment, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents Documents, other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Civ) such Permitted Acquisition each Target shall be consensual have become a “Credit Party” under this Agreement, and shall have been approved executed and delivered to Lender all documents reasonably requested by Lender in furtherance of the Target's board foregoing, including, (a) with respect to a Target owned by any Parent Guarantor, a Guaranty in form and substance satisfactory to Agent, and (b) with respect to a Target organized under the laws the United States and owned by any Borrower or Subsidiary Guarantor, a joinder to the Security Agreement, a joinder to the Pledge Agreement, and if requested by Agent, a Guaranty in form and substance satisfactory to Agent;
(v) such Credit Party shall execute and deliver to Agent such agreements and documents reasonably requested by Agent in order to grant to the Agent, for the benefit of directors Agent and Lenders, a perfected first priority security interest in all of the Stock of the Target (or comparable governing bodyup to 65% of Capital Stock of any Target organized under the laws of any jurisdiction other than the United States);
(Dvi) the costs, fees or expenses of forming or acquiring any such new Target shall be provided by a direct or indirect contribution from any Parent Guarantor; provided, that if after the payment of such costs, fees or expenses of formation or acquisition, Liquidity exceeds $15,000,000, then there shall be no limitation on the source of such costs, fees or expenses with respect to Targets who become “Borrowers” or “Subsidiary Guarantors”; provided, that in no event will Borrowers contribute more than $5,000,000 in the aggregate in any Fiscal Year for such costs, fees or expenses;
(vii) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed assumed, or shall otherwise be reflected on a the consolidated balance sheet of Borrower Borrowers and their Subsidiaries after giving affect to the Permitted Acquisition, except (A) Loans made hereunder and (B) ordinary course trade payables, accrued expenses and unsecured Indebtedness and contingent obligations of the Target to the extent no Default or Event of Default would result after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(Fviii) the business and assets acquired in such Permitted Acquisition of each Target shall be free and clear of all Liens (other than the first priority Lien of Agent and Permitted Encumbrances);
(Gix) at or prior to the consummation of the Permitted Acquisition, Lender shall have received from Borrower a written supplement to Disclosure Schedule (3.8(a)) and to any other Schedule to the Loan Agreement, in each case to the extent necessary to correct any information in such Schedule after giving effect to the Permitted Acquisition;
(x) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower Credit Parties shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Parent and its Subsidiaries (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Parent and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that (y) average Liquidity of all Borrowers for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded $15,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Liquidity of $15,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in Annex G for the four quarter period (or such shorter period, as appropriate, as is tested during the first 12 months following the Closing Date) reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the one-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Parent to the effect that: (w) Credit Parties taken as a whole (after taking into consideration all rights of contribution and indemnity Credit Parties have against each other) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of Parent and Borrowers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of Parent and Borrowers subsequent to the date thereof based upon the historical performance of Credit Parties and the Target and show that Borrowers shall continue to be in compliance with the financial covenants set forth in Annex G for the one-year period thereafter, it being understood that uncertainty is inherent in any forecasts or projections and that no assurance can be given that the results set forth in the Projections will actually be obtained; and (z) Credit Parties have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(xi) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent; and
(xii) at the time of such Permitted Acquisition and after giving effect thereto, no Event of Default has occurred and is continuing. Notwithstanding the foregoing, the Accounts of the Target shall not be included in Eligible Accounts without the prior written consent of Agent and Requisite Revolving Lenders.
Appears in 1 contract
Samples: Credit Agreement (Ddi Corp)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, provided, that Hometown shall be permitted to form (x) Specified Borrowers and Real Estate Subsidiaries for the purpose of effecting a Permitted Acquisition utilizing Permitted Acquisition Financing and (y) Non-Recourse Subsidiaries), or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock capital stock of, or otherwise combine with or acquire, any Person, except that any Borrower may merge with another Borrower, provided that Borrower Representative shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
(i) , Hometown may acquire all or substantially all of the Stock of any Person and any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Ai) Agent and Lenders shall receive reasonable at least thirty (and, in any event, not less than 14 days'30) Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentwith valid vehicle franchise agreements, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and consensual, shall have been approved by the Target's board of directors (or comparable governing body)and is acceptable to the Agent, in its sole discretion, as a creditworthy Credit Party;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Hometown and Target after giving effect to such Permitted Acquisition, except (A) Advances made hereunder, provided that (x) Indebtedness otherwise permitted under Section 6.3, no Floor Plan Advance may be requested to fund any such Permitted Acquisition until the Borrowers have utilized the Acquisition Loan Commitment in full in the amount of the Acquisition Loan Commitment as in effect on the date of this Agreement and (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and the aggregate principal amount of Floor Plan Advances utilized to effect Permitted Acquisitions shall not exceed an aggregate amount equal to 10% of Net Borrowing Availability, (zB) ordinary course trade payables and accrued expenses expenses, (C) unsecured Indebtedness of the Target to the extent no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition, (D) Subordinated Debt issued to the sellers of such Target, (E) Permitted Acquisition Financing, (F) Permitted Acquisition Financing Guaranties and (G) liabilities of the Target acceptable to the Agent in its reasonable discretion;
(Ev) the sum of all amounts payable in connection with any single aggregate Advance made to fund the Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000three and one-half (3.5) times the Target's EBITDA for the trailing twelve (12) month period immediately prior to the proposed acquisition date; provided, and however, that after giving effect to any Advance ratio of (1), the sum aggregate principal amount of Acquisition Loans then outstanding to (2) an amount equal to (x) Hometown's EBITDA (after giving pro forma effect to such Permitted Acquisition), minus (y) the unfinanced portion of Capital Expenditures, minus (z) Interest Expense, in each case for the twelve (12) month period prior to the proposed date of such amounts for all Permitted Acquisitions in any Fiscal Year Advance, shall not exceed $15,000,0002.0 to 1.0;
(Fvi) the Target shall have generated a return on sales of 0.5% or more for the immediately preceding twelve month period, as determined based upon the Target's Financial Statements for such period and sales for such period shall have not declined more than fifteen percent (15%) as measured against the twelve month period immediately preceding such initial twelve month period;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and capital stock of the Target, and Borrowers, Specified Borrowers and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith including such documents and actions as may be required by Agent to make the Specified Borrower and/or Target a Credit Party hereunder (as a Borrower, Specified Borrower or Guarantor, as applicable) and as otherwise required to comply with Section 1.8;
(ix) Concurrently with delivery of the notice referred to in clause (Ai) above, Borrower such Person shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Hometown and its Subsidiaries (the "Acquisition Pro Forma"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Hometown and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that on a pro forma basis, no Event of Default shall have occurred and be continuing or would result after giving effect to such Permitted Acquisition and Hometown and its Subsidiaries would have been in compliance with the financial covenants set forth in Annex F for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex D prior to the consummation of such Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections covering the period commencing on the date of such Permitted Acquisition and ending on the date which is not sooner than the fifth anniversary of the Closing Date and otherwise prepared in -44- accordance with the Projections (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Agent, taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of Hometown to the effect that: (v) Hometown and its Subsidiaries taken as a whole (after taking into consideration all rights of contribution and indemnity any such Person has against each other Credit Party) will be Solvent upon the consummation of the Permitted Acquisition; (w) the Acquisition Pro Forma fairly presents the financial condition of Hometown and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (x) the Acquisition Projections are reasonable estimates of the future financial performance of Hometown and its Subsidiaries subsequent to the date thereof based upon the historical performance of Hometown and its Subsidiaries and the Target and show that Hometown and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Annex F for the three (3) year period thereafter; (y) in the event that a Loan other than an Acquisition Loan is utilized by the Borrowers to effect a Permitted Acquisition, Borrowers shall have Net Borrowing Availability (inclusive of any Reserves established by Agent in connection therewith) in excess of an amount equal to 10% (or such lesser percentage as is acceptable to the Agent in its sole discretion) of Net Borrowing Availability after giving effect to such Permitted Acquisition (inclusive of any Reserves established by Agent in connection therewith) for the 90 day period following such Permitted Acquisition; and (z) Hometown and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) in the event that such Permitted Acquisition involves a Specified Borrower, on or prior to the date of such Permitted Acquisition Hometown, Agent and the Requisite Floor Plan Lenders shall establish financial covenants of the type contained in Annex F hereto to be applicable to such Specified Borrower;
(xi) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent;
(xii) if requested by Agent, Agent shall have received such environmental review and audit reports with respect to the real property of the Target as Agent shall have requested and Agent shall be satisfied, in its sole discretion, with the contents and scope of all such environmental reports;
(xiii) Agent shall have received evidence satisfactory to Agent that on or prior to the proposed acquisition date Hometown has contributed one dollar of equity (which, for the purposes of determining compliance with this clause (xiii) shall include any Subordinated Debt or equity issued to the sellers of the Target as consideration for such Permitted Acquisition) for every two dollars of Advances made against the purchase price of the Target. For purposes of this clause (xiii), "purchase price" shall mean the total amount paid for the Target less the cost to acquire Vehicles, and parts inventory of the Target;
(xiv) Agent shall have received evidence satisfactory to Agent that such Person has obtained all required consents, waivers, acknowledgments, orders, authorizations and approvals of all Persons including all requisite Governmental Authorities, third parties and Manufacturers to the consummation of the proposed acquisition;
(xv) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and
(xvi) the Agent shall have completed all business and legal due diligence with respect to the Target and the proposed acquisition with results satisfactory to the Agent including the capital structure, corporate structure, governing documents and material agreements of Hometown and the Target and their respective Subsidiaries after giving effect to the proposed acquisition, and the legal and tax effects resulting from such proposed acquisition. Notwithstanding the foregoing, the Inventory of the Target shall not be included in Eligible Financed Vehicles and Eligible Used Vehicles without the prior written consent of Agent and Requisite Floor Plan Lenders.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall, nor shall it cause or permit any Subsidiaries to, directly or indirectly, by operation of law or otherwise, (ai) form or acquire any Subsidiary, or (bii) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding , except (A) any Credit Party may merge with another Credit Party, provided that Borrower shall be the foregoing:
survivor of any such merger to which it is a party; (B) any Credit Party may form one or more wholly owned Domestic Subsidiaries so long as (i) Borrower may acquire all no Event of Default shall have occurred and be continuing or substantially all of the assets or all of the Stock of any Person result therefrom, (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Aii) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice receives an Officer Certificate of Borrower executed by the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors Chief Financial Officer of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet another responsible officer of Borrower having substantially the same authority and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith responsibility or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered acceptable to Agent, certifying as to the purpose of such New Subsidiary, the amount of cash and fair market value of any other assets being contributed to such New Subsidiary and Borrower’s compliance with the terms of the restrictions on such investments in Section 6.2 hereof, and (iii) such Subsidiary shall have become a Secured Guarantor and Borrower and/or its Subsidiaries shall have caused to be executed and delivered such documents and taken such actions as may be reasonably required by Agent in connection therewith, including, without limitation, delivery of financing statements, supplemental security agreements, mortgages, joinder agreements, a Guaranty, environmental indemnity agreements, blocked account agreements, and other documents, certificates and opinions, in each case in form and substance acceptable reasonably satisfactory to Agent:; (C) Borrower or any Secured Guarantor may consummate a Permitted Loan Funded Acquisition; and (D) any Foreign Subsidiary may consummate a Permitted Non-Loan Funded Acquisition.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that (i) any wholly-owned Subsidiary of US Borrower may merge with US Borrower so long as US Borrower is the survivor thereof, (ii) any wholly-owned Subsidiary of European Borrower may merge with European Borrower so long as European Borrower is the survivor thereof, (iii) any US Credit Party (other than US Borrower) may merge with any other US Credit Party (other than US Borrower), and (iv) any European Credit Party (other than European Borrower) may merge with any other European Credit Party (other than European Borrower),or (b) form any Subsidiary or acquire all or substantially all of the assets or Stock of any Person without the prior written consent of Agent. Notwithstanding the foregoing:
(i) , any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (the "TargetTARGET") (in each case, a "Permitted AcquisitionPERMITTED ACQUISITION") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders), but subject to the satisfaction of each of the following conditions:
(Ai) Agent shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(Bii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower Borrowers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower Borrowers prior to such Permitted Acquisition;
(Ciii) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body)otherwise duly authorized by the Target;
(Div) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower Borrowers and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ev) the sum of all amounts consideration payable in connection with any single all Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower Borrowers and Target) shall consist solely of (A) Stock of Innovations and/or (B) cash not to exceed $5,000,000, and 1,000,000 in the sum of such amounts aggregate for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000the period from the Closing Date until the Termination Date;
(Fvi) the Target shall have positive EBITDA for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target's financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gviii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and each Credit Party and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause CLAUSE (Ai) above, Borrower Borrowers shall have delivered to Agent, in form and substance reasonably satisfactory to Agent:
(1) a pro forma consolidated balance sheet, income statement and cash flow statement of the Reporting Credit Parties (the "ACQUISITION PRO FORMA"), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of Innovations and its Subsidiaries in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in connection therewith, and such Acquisition Pro Forma shall reflect that on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and the Reporting Credit Parties would have been in compliance with the financial covenants set forth in ANNEX G for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to ANNEX E prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(2) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the "ACQUISITION PROJECTIONS") and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition; and
(3) a certificate of the Treasurer and Vice President, Finance, of Innovations to the effect that: (w) each Credit Party (after taking into consideration all rights of contribution and indemnity such Credit Party has against Innovations and each other Subsidiary of Innovations) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of the Reporting Credit Parties (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of the Reporting Credit Parties subsequent to the date thereof based upon the historical performance of the Reporting Credit Parties and the Target and show that the Reporting Credit Parties shall continue to be in compliance with the financial covenants set forth in ANNEX G for the 3-year period thereafter; and (z) the Reporting Credit Parties have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent including those specified in the last sentence of SECTION 5.9 and
(xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no (a) The Credit Party Parties shall not directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. .
(b) Notwithstanding the foregoing:
(i) prohibition of Section 6.1(a), any Borrower may acquire all or substantially all of the assets or all of the Stock of any Person a Facility and Holdings may form a wholly-owned domestic Subsidiary to acquire a Facility (the "Target") (in each caseeach, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders), but in each case subject to the satisfaction of each of the following conditions:
(Ai) in the case of a Permitted Acquisition by a newly-formed Subsidiary, such Subsidiary shall become a Borrower hereunder, pursuant to Section 1.14, and Holdings shall pledge the Stock of such Subsidiary to Agent, for the benefit of Agent and Lenders;
(ii) Agent shall receive reasonable (and, in any event, not less than 14 at least thirty days') ' prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed including the legal description of such proposed Permitted Acquisitionthe real property to be acquired;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(Diii) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target the Credit Parties after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the TargetTerm Loan related to such Facility;
(Eiv) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets Facility acquired in such Permitted Acquisition shall be free and clear of all Liens (Liens, other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered Encumbrances and a first-priority Lien granted to Agent, for the benefit of itself and Lenders, in form connection with the Term Loan advance related to such Facility and substance reasonably satisfactory pursuant to Agent:any mortgage, deed of trust, or other Collateral Documents required by Agent in its discretion; and
(v) at the time of such Permitted Acquisition and after giving effect thereto and to the Term Loan related to such Facility, no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no Credit Party No Issuer shall directly or indirectly, by operation of law or otherwise, (a) form or acquire any Subsidiary, or (b) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person, except that any Issuer may merge with another Issuer, provided that the Issuer Representative shall be the survivor of any such merger to which it is a party. Notwithstanding the foregoing:
, any Issuer (iother than Holdings) Borrower or Holdings (so long as contemporaneously therewith, all assets so acquired are transferred to one or more other Issuers) may acquire all or substantially all of the assets or all of the Stock of any Person (the "“Target"”) (in each case, a "“Permitted Acquisition"”) with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Aa) the Agent and the Purchasers shall receive reasonable (and, in any event, not less than 14 days') at least 30 Business Days’ prior written notice of the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition; provided that the Agent and the Purchasers shall have received at least 15 Business Days’ prior written notice (or such other period as may be consented to by the Required Purchasers) of any proposed Junior Permitted Acquisition only;
(Bb) such Permitted Acquisition shall only involve assets located in the United States or Canada and comprising a business, or those assets of a business, of the type engaged in by Borrower the Issuers as of the Closing Date and other businesses that, in the good faith judgment of the board of directors of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipmentDate, and which businesses business would not subject Agent or any Lender Second Lien Party to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Second Lien Credit Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower the Issuers prior to such Permitted Acquisition;
(Cc) such Permitted Acquisition shall be consensual and shall have been approved by the Target's ’s board of directors (or comparable governing body)directors, where applicable;
(Dd) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and the Issuers and, if applicable, Target after giving effect to such Permitted Acquisition, except (xA) Indebtedness otherwise permitted loans under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 the First Lien Facility in connection therewith and (zB) ordinary course trade payables and payables, accrued expenses and unsecured Indebtedness of the TargetTarget to the extent no Default or Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition;
(Ee) the sum of all amounts payable in connection with any single Permitted Acquisition Acquisitions (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower the Issuers and Target) shall not exceed $5,000,000, 10,000,000 in any one Permitted Acquisition and $30,000,000 in the sum of such amounts aggregate for all such Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000Acquisitions;
(Ff) for Permitted Acquisitions involving the acquisition of the Target’s Stock only, the Target shall not have incurred an operating loss for the trailing twelve-month period preceding the date of the Permitted Acquisition, as determined based upon the Target’s financial statements for its most recently completed fiscal year and its most recent interim financial period completed within 60 days prior to the date of consummation of such Permitted Acquisition;
(g) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(Gh) at or prior to the closing of any Permitted Acquisition, the Agent will be granted a second priority (or first priority following payment in full of the First Lien Debt) perfected Lien (subject only to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and Holdings and the Issuers and the Target shall have executed such documents and taken such actions as may be required by the Agent in connection therewith;
(i) Concurrently with delivery of the notice referred to in clause (Aa) above, Borrower the Issuers shall have delivered to Agentthe Agent and the Purchasers, in form and substance reasonably satisfactory to the Agent:
(1) a pro forma consolidated balance sheet, income statement and cash flow statement of the Issuers (the “Acquisition Pro Forma”), based on recent financial statements, which shall be complete and shall fairly present in all material respects the assets, liabilities, financial condition and results of operations of the Issuers in accordance with GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all loans under the First Lien Facility in connection therewith, and such Acquisition Pro Forma shall reflect that (x) on a pro forma basis, the Issuers would have had a Fixed Charge Coverage Ratio not less than 1.00:1 for the four-quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Annex B prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period), (y) average daily Aggregate Borrowing Availability (less $10,000,000 or such other amount as the Issuers may be required to maintain pursuant to Section 11.10, Annex D, clause (c) of this Agreement) of all Issuers for the 30-day period preceding the consummation of such Permitted Acquisition would have exceeded $25,000,000 on a pro forma basis (after giving effect to such Permitted Acquisition (other than any impact on the Revolver Borrowing Base and First Funded Revolver Borrowing Base) and all loans under the First Lien Facility funded in connection therewith as if made on the first day of such period) and (z) on a pro forma basis, no Event of Default has occurred and is continuing or would result after giving effect to such Permitted Acquisition and the Issuers would have been in compliance with the financial covenants set forth in Annex D for the four quarter period reflected in the Compliance Certificate most recently delivered to the Agent pursuant to Annex B prior to the consummation of such Permitted Acquisition (after giving effect to such Permitted Acquisition and all loans under the First Lien Facility funded in connection therewith as if made on the first day of such period);
(2) updated versions of the most recently delivered Projections covering the 1-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to the Agent, taking into account such Permitted Acquisition; and
(3) a certificate of the chief financial officer of the Issuer Representative to the effect that: (w) each Issuer (other than Subsidiaries of Core-Xxxx International, Inc.) (after taking into consideration all rights of contribution and indemnity such Issuer has against each other Issuer) will be Solvent upon the consummation of the Permitted Acquisition; (x) the Acquisition Pro Forma fairly presents the financial condition of the Issuers (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition; (y) the Acquisition Projections are reasonable estimates of the future financial performance of the Issuers subsequent to the date thereof based upon the historical performance of the Issuers and the Target and show that the Issuers shall continue to be in compliance with the financial covenants set forth in Annex D for the period until the Termination Date; and (z) the Issuers have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to the Agent and the Purchasers;
(j) on or prior to the date of such Permitted Acquisition, the Agent shall have received, in form and substance reasonably satisfactory to the Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by the Agent including those specified in the last sentence of Section 10.9, if applicable; and
(k) at the time of such Permitted Acquisition and after giving effect thereto, no Default or Event of Default has occurred and is continuing. Notwithstanding the foregoing, for Junior Permitted Acquisitions only, the Issuers shall not be required to comply with clauses (e), (f), (i)(1)(x), (i)(2) or (i)(3) above prior to consummating such Junior Permitted Acquisition (but shall, for the avoidance of doubt, be required to comply with all other conditions for a Permitted Acquisition set forth above).
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Core-Mark Holding Company, Inc.)
Mergers, Subsidiaries, Etc. Except as otherwise permitted under Sections 6.2 or 6.8, no No Credit Party shall, nor shall it cause or permit any Subsidiaries to, directly or indirectly, by operation of law or otherwise, (ai) form or acquire any Subsidiary, or (bii) merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or acquire, any Person. Notwithstanding , except (A) any Credit Party may merge with another Credit Party, provided that Borrower shall be the foregoing:
survivor of any such merger to which it is a party; (B) any Credit Party may form one or more wholly owned Domestic Subsidiaries so long as (i) Borrower may acquire all no Event of Default shall have occurred and be continuing or substantially all of the assets or all of the Stock of any Person result therefrom, (the "Target") (in each case, a "Permitted Acquisition") with the consent of Requisite Lenders or without consent of Agent or Requisite Lenders, but subject to the satisfaction of each of the following conditions:
(Aii) Agent shall receive reasonable (and, in any event, not less than 14 days') prior written notice receives an Officer Certificate of Borrower executed by the expected consummation date of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(B) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of the type engaged in by Borrower as of the Closing Date and other businesses that, in the good faith judgment of the board of directors Chief Financial Officer of Borrower, are reasonably related, ancillary or complimentary thereto, or reasonable extensions thereof, including without limitation the leasing of medical equipment, and which businesses would not subject Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(C) such Permitted Acquisition shall be consensual and shall have been approved by the Target's board of directors (or comparable governing body);
(D) no additional Indebtedness, Guaranteed Indebtedness, contingent obligations or other liabilities shall be incurred, assumed or shall otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (x) Indebtedness otherwise permitted under Section 6.3, (y) Guaranteed Indebtedness otherwise permitted under Section 6.6 and (z) ordinary course trade payables and accrued expenses of the Target;
(E) the sum of all amounts payable in connection with any single Permitted Acquisition (including all transaction costs and all Indebtedness, liabilities and contingent obligations incurred or assumed in connection therewith or otherwise reflected in a consolidated balance sheet of Borrower and Target) shall not exceed $5,000,000, and the sum of such amounts for all Permitted Acquisitions in any Fiscal Year shall not exceed $15,000,000;
(F) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(G) Concurrently with delivery of the notice referred to in clause (A) above, Borrower shall have delivered another officer acceptable to Agent, certifying as to the purpose of such New Subsidiary, the amount of cash and fair market value of any other assets being contributed to such New Subsidiary and Borrower’s compliance with the terms of the restrictions on such investments in Section 6.2 hereof, and (iii) such Subsidiary shall have become a Secured Guarantor and Borrower and/or its Subsidiaries shall have caused to be executed and delivered such documents and taken such actions as may be reasonably required by Agent in connection therewith, including, without limitation, delivery of financing statements, supplemental security agreements, mortgages, joinder agreements, a Guaranty, environmental indemnity agreements, blocked account agreements, and other documents, certificates and opinions, in each case in form and substance acceptable reasonably satisfactory to Agent:; (C) Borrower or any Secured Guarantor may consummate a Permitted Loan Funded Acquisition; and (D) any Foreign Subsidiary may consummate a Permitted Non-Loan Funded Acquisition.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
